SAMUEL S. GRANITO, PETITIONER V UNITED STATES OF AMERICA
GENNARO ANGIULO, FRANCESCO ANGIULO, DONATO ANGIULO, AND MICHELE
ANGIULO, PETITIONERS V UNITED STATES OF AMERICA
No. 90-10, No. 90-46
In The Supreme Court Of The United States
October Term, 1990
On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
Opinion Below
The opinion of the court of appeals (Pet. App. 1a-109a) is reported
at 897 F.2d 1169.
JURISDICTION
The judgment of the court of appeals was entered on March 5, 1990,
Petitions for rehearing were denied on March 26, 1990. The petitions
for a writ of certiorari were filed on June 25, 1990 (a Monday). The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether petitioner Granito's RICO convictions must be reversed
because the court of appeals found that the evidence was insufficient
to support one of the predicate acts of racketeering charged against
him.
2. Whether the "pattern of racketeering activity" element of the
RICO statute is unconstitutionally vague.
3. Whether the district court erred in refusing to order immunity
for a prospective defense witness.
4. Whether the district court erred in declining to give a
requested jury instruction distinguishing between the extortionate
extension of credit charged against petitioners Gennaro, Francesco,
and Donato Angiulo in one count and the extortionate extension of
credit charged against a severed co-defendant in another count.
5. Whether the district court erred in declining to instruct the
jury that it could find one overall gambling business instead of the
five separate gambling businesses charged in the indictment.
6. Whether the district court erred in declining to give the voice
identification instruction requested by petitioners.
STATEMENT
Following a jury trial in the United States District Court for the
District of Massachusetts, petitioner Gennaro Angiulo was convicted on
one count of participating in an enterprise through a pattern of
racketeering activity, in violation of 18 U.S.C. 1962(c) (Count 2);
one count of conspiring to commit that offense, in violation of 18
U.S.C. 1962(d) (Count 1); four counts of conducting an illegal
gambling business, in violation of 18 U.S.C. 1955 (Counts 3, 4, 5, 7);
two counts of conspiring to make an extortionate extension of credit,
in violation of 18 U.S.C. 892(a) (Counts 12 and 13); one count each
of conspiring to collect and collecting an extortionate extension of
credit, in violation of 18 U.S.C. 894(a) (Counts 14 and 15,
respectively); one count of obstructing justice, in violation of 18
U.S.C. 1503 (Count 18); and one count of conspiring to commit that
offense, in violation of 18 U.S.C. 371 (Count 19). Petitioner
Francesco Angiulo was convicted on Counts 1 through 5, 7, and 12
through 14; petitioner Donato Angiulo was convicted on Counts 1, 2,
3, and 12; petitioner Granito was convicted on Counts 1, 2, and 4;
and petitioner Michele Angiulo was convicted on Count 3.
Gennaro Angiulo was sentenced to a total of 45 years' imprisonment
and $120,000 in fines; Francesco Angiulo was sentenced to 25 years'
imprisonment and $60,000 in fines; Donato Angiulo was sentenced to 20
years' imprisonment and $40,000 in fines; Granito was sentenced to 20
years' imprisonment and $35,000 in fines; and Michele Angiulo was
sentenced to three years' imprisonment and a fine of $5,000. The
district court also ordered the forfeiture of various assets. The
court of appeals reversed two parts of the forfeiture order but
affirmed in all other respects. Pet. App. 1a-109a.
1. The evidence at trial showed that all five petitioners were
members of the Patriarca Family of La Cosa Nostra. Gennaro Angiulo
was the underboss of the organization, in charge of its day-to-day
operations. Immediately beneath him in the command hierarchy were
Samuel Granito and Donato Angiulo, who were "Capo Regimes" (captains).
Beneath the Capo Regimes, the organization consisted of soldiers and
then of associates. Francesco Angiulo was a soldier and also served
as the accountant for the organization's gambling and loansharking
businesses. Michele Angiulo was an associate. Pet. App. 3a-4a.
In various combinations, petitioners participated in four illegal
gambling operations. The first involved the operation by Gennaro and
Francesco Angiulo of a series of "Las Vegas Nights" gambling events
from approximately late 1978 to mid-1981. The events were a type of
bazaar, ostensibly operated to benefit nonprofit, charitable
organizations. In fact, however, the proceeds were not given to
charitable organizations, but were kept by their La Cosa Nostra
operators. Pet. App. 4a.
The second gambling business involved the operation, during 1980
and 1981, of twice-weekly barbooth games at the Demosthenes Democratic
Social Club in Lowell, Massachusetts. Barbooth is a dice game in
which, typically, 12 or more players place bets on whether the shooter
of the dice will roll a winning or losing combination of numbers. The
house takes a percentage of the amount bet. Gennaro Angiulo was the
overseer of the operation, and Francesco Angiulo was the accountant.
Pet. App. 5a.
The third gambling business was an extensive, illegal
numbers-betting operation in the Boston area. Approximately 180
people were involved in the operation, including agents who collected
the bets, "sub-books" who controlled the agents and paid the winning
bettors, and office managers who supervised the day-to-day operation
of the business and settled accounts with the sub-books. Gennaro
Angiulo was the principal owner and overall boss of the operation.
Francesco Angiulo was the day-to-day supervisor. Donato Angiulo
controlled a number of sub-book operations and was responsible for
collecting money. Michele Angiulo stood in for Francesco and also
assisted in controlling several of the sub-book operations. Pet. App.
5a.
The final gambling business involved high-stakes poker games in
which Gennaro Angiulo and Granito had a financial interest. Gennaro
Angiulo was the overall boss of the operation, and Francesco Angiulo
served as the accountant. Pet. App. 6a.
In addition to their gambling operations, Gennaro, Donato, and
Francesco Angiulo engaged in loansharking. For example, in 1981
Donald Smoot, a regular player in the poker games, owed Donato Angiulo
$14,000 at an interest rate of two and a half percent per week.
Joseph Palladino owed the Angiulos $200,000, paid interest at the rate
of one percent per week, and eventually satisfied the debt by
transferring real estate to the Angiulos. Pet. App. 6a-7a.
Petitioners also engaged in a series of conspiracies to obstruct
justice and commit murder. During the 1950s and 1960s, Edward,
William, and Walter Bennett were loansharks and bookmakers who came
into conflict with Gennaro Angiulo and codefendant Ilario Zannino. In
January 1967, Edward Bennett disappeared; in April 1967, Walter
Bennett likewise disappeared; and in December 1967, William Bennett
was shot to death. In an intercepted conversation in 1981, Gennaro
Angiulo and Zannino recounted how Zannino, with the help of an
accomplice, killed the Bennetts at Gennaro's direction. Gov't C.A.
Br. 28-29.
In 1976, Gennaro Angiulo had his associates kill Joseph Barboza,
who had testified against Gennaro and other members of his
organization in several prosecutions. Gov't C.A. Br. 29-30. In early
1981, Gennaro conspired with others to kill Walter LaFreniere in order
to prevent him from testifying before a federal grand jury about the
Angiulo organization. Also in early 1981, Gennaro Angiulo and Granito
engaged with others in a conspiracy to kill Angelo Patrizzi, who they
believed was planning to kill two members of the Patriarca Family as
revenge for the 1978 murder of Patrizzi's half-brother. In June 1981,
Patrizzi's decomposed body was found in the trunk of a stolen car.
Pet. App. 7a-8a.
2. The court of appeals affirmed the convictions. Petitioners
contended, first, that their RICO convictions had to be reversed
because the "pattern of racketeering activity" element of the RICO
statute is unconstitutionally vague. In rejecting that claim, the
court concluded that, whatever doubts there may be about the "precise
reach of the statute in marginal fact situations not currently before
(the court)," there could be no doubt on the part of a person of
ordinary intelligence that petitioners' conduct was proscribed,
because "the murder conspiracies and the gambling and loansharking
operations for which the defendants were charged and convicted here
are precisely the type of activity that Congress intended to reach
through RICO." Pet. App. 12a-13a. The court also held that the
predicate acts charged against petitioner Granito, all of which were
carried out to further the aims of the same RICO enterprise (the
Patriarca Family), clearly constituted a "pattern" within the meaning
of the RICO statute. Id. at 15a.
Second, the court rejected the Angiulos' contention that the
district court erred in refusing to order immunity for prospective
defense witness Joseph Palladino. The court expressed "substantial
reservations" about the notion that judges have inherent power to
grant defense-witness immunity. In any event, however, the court
concluded that a grant of immunity to Palladino would not have been
appropriate because the government had "significant" reasons for
withholding immunity: to protect possible future federal and state
prosecutions of Palladino for engaging in organized criminal
activities. Pet. App. 43a. The court also found no government
misconduct with respect to Palladino of a sort that might warrant a
court order requiring the government to grant Palladino statutory
immunity. Id. at 43a-47a.
Third, although the court found the evidence insufficient to
support one of the predicate acts of racketeering charged against
Granito (being an accessory to the Patrizzi murder), the court upheld
Granito's RICO convictions on the ground that the jury necessarily
found him guilty of conspiring to kill Patrizzi and participating in
the poker game operation, the other two predicate acts alleged against
him. Pet. App. 54a-65a.
Next, the court upheld the district court's refusal to instruct the
jury that the testimony of an FBI agent, who had identified
petitioners' voices in tape-recorded conversations, must be "received
with caution and scrutinized with care." The court of appeals
explained that the general jury instructions, when considered in the
context of the charge as a whole, adequately covered the issues raised
by the requested voice-identification instruction, and that the
district court's failure to give the instruction did not impair
petitioners' ability to present their voice-identification defense.
Pet. App. 80a-81a.
Fifth, petitioners contended that the district court should have
instructed the jury that it could find that petitioners' various
gambling operations constituted only a single overall gambling
business, rather than five separate gambling businesses, as charged in
the indictment. The court of appeals found "little or no evidentiary
grounds to warrant instructing the jury on the 'one business only'
theory." Pet. App. 84a.
Finally, the court rejected the Angiulos' contention that the jury
instruction on Count 12 (which charged Gennaro, Francesco, and Donato
Angiulo with making an extortionate loan of $14,000 to Donald Smoot),
failed adequately to differentiate the Angiulos' loan from a distinct
$14,000 loan to Smoot made by Zannino (which was initially charged in
Count 11 and later deleted from the indictment when Zannino was
severed from the trial). The court concluded that the instructions,
as given, were "sufficiently clear to eliminate any likelihood that
the jury would confuse the Zannino loan (count 11) with the Angiulo
loan (count 12)." Pet. App. 89a. /1/
ARGUMENT
1. Petitioner Granito challenges (Pet. 16-26) the court of appeals'
affirmance of his RICO convictions after the court found the evidence
insufficient to support one of the predicate acts charged against him.
Contending that the jury may have improperly relied on the invalid
predicate act in convicting him, petitioner claims that this case
falls within the rule that when the jury is instructed that it may
convict on one of several grounds, and one of those grounds is later
determined to be insufficient, the conviction must be reversed if the
reviewing court is not certain that the jury's verdict rested on a
valid ground. See Stromberg v. California, 283 U.S. 359, 367-370
(1931) (reversing when "so far as the record discloses" the conviction
may have rested on an invalid ground); Yates v. United States, 354
U.S. 298, 312 (1957); Street v. New York, 394 U.S. 576, 585-588
(1969); see generally Zant v. Stephens, 462 U.S. 862, 880-884 (1983).
The court of appeals acknowledged the general rule on which
petitioner relies. But the court correctly concluded that that rule
is not controlling when "uncertainty as to the ground upon which the
jury relied can be eliminated," such as "where a verdict based on any
ground would mean that the jury found every element necessary to
support a conviction on the sufficient ground." Pet. App. 63a-64a,
quoting United States v. Ochs, 842 F.2d 515, 520 (1st Cir. 1988).
Applying those principles, the court concluded that the jury here
necessarily found that petitioner committed the two predicate acts
charged in the indictment that were sufficiently supported by the
evidence. /2/
Granito was charged with three predicate acts under RICO:
gambling; being an accessory to the Patrizzi murder; and conspiring
to murder Patrizzi. The predicate act of gambling was also charged as
a separate substantive crime. The court first noted that the jury's
conviction of Granito on the gambling count removed all doubt that the
jury also found him guilty on the corresponding predicate act of
gambling. Pet. App. 62a. See Brennan v. United States, 867 F.2d 111,
114 (2d Cir.) (guilty verdicts on separately charged crimes
paralleling the RICO predicate acts "operated like special verdicts"
showing the jury's finding of guilt on the predicate acts), cert.
denied, 109 S. Ct. 1750 (1989); United States v. Kragness, 830 F.2d
842, 861 (8th Cir. 1987), cert. denied, 109 S. Ct. 2086 (1989);
United States v. Anderson, 809 F.2d 1281, 1284-1285 (7th Cir. 1987);
United States v. Lopez, 803 F.2d 969, 976-977 (9th Cir. 1986), cert.
denied, 481 U.S. 1030 (1987); United States v. Pepe, 747 F.2d 632,
688 (11th Cir. 1984); United States v. Peacock, 654 F.2d 339, 348
(1981), modified, 686 F.2d 356 (5th Cir. 1982), cert. denied, 464 U.S.
965 (1983).
The court also reasoned that because a RICO "pattern" requires "at
least two acts of racketeering activity," 18 U.S.C. 1961(5), the jury
also must have found Granito guilty of conspiring to murder Patrizzi,
being an accessory to his murder, or both. Pet. App. 62a. If the
jury found Granito guilty of conspiracy, the court observed, his RICO
convictions would of course be valid; the evidence sufficiently
established conspiracy. But the court rejected Granito's surmise that
"the jury may have found him guilty on accessory, but not on
conspiracy." Id. at 64a. Although the court found the evidence
insufficient in one respect to support the accessory charge, /3/ the
court explained that if the jurors found Granito guilty of being an
accessory to Patrizzi's murder, they necessarily must have found him
guilty on the charge of conspiring to kill Patrizzi, thus supplying
the second valid predicate act.
If the jury convicted Granito as an accessory, by
finding that
(Frederick) Simone was a principal in the
Patrizzi murder and
that Granito had incited, procured, counseled,
hired and
commanded Simone to commit the murder, they must
necessarily
have accepted the government's interpretation of
the pertinent
tape-recorded conversations involving Simone,
Granito, Gennaro
Angiulo, and Zannino. These same
conversations, and virtually
the same government interpretation, were at the
heart of the
conspiracy charge against Granito, which alleged
that Granito
had conspired with Zannino, Simone, and Gennaro
Angiulo to kill
Patrizzi.
Pet. App. 64a-65a. The Court thus concluded that "(b)ecause the facts
and the elements underlying the two charges were so intertwined, if
the jury found Granito guilty as an accessory, they must also have
found him guilty of conspiracy." /4/ Id. at 65a.
The court of appeals' affirmance of Granito's RICO convictions,
after its determination that the jury necessarily found the requisite
predicate acts, is fully consistent with the analysis employed in
similar settings by other courts of appeals. See United States v.
Corona, 885 F.2d 766, 775 (11th Cir. 1989) (allegations on invalid
mail fraud counts and valid Travel Act counts "were so intertwined
that jury could not reasonably have found that (the defendant)
performed the mail fraud but not the Travel Act conduct"), cert.
denied, 110 S. Ct. 1838 (1990); Callanan v. United States, 881 F.2d
229, 234-235 (6th Cir. 1989) (co-defendant's conviction on RICO
charges based on bribery established that the jury found that
defendant committed valid bribery predicates; therefore, invalid mail
fraud predicate acts did not require reversal), cert. denied, 110 S.
Ct. 1816 (1990); United States v. Zauber, 857 F.2d 137, 151-154 (3d
Cir. 1988) (instruction required jury to find kickbacks; hence,
submission of invalid predicate acts of mail fraud did not require
reversal of RICO charge), cert. denied, 109 S. Ct. 1340 (1989).
Contrary to Granito's contention (Pet. 18), there is no conflict
among the courts of appeals over the proper disposition of RICO
convictions when one predicate act is found invalid. In the cases
cited by Granito, the courts reversed RICO convictions only after
finding that it was unclear whether the jury had found two valid
predicate acts. The court of appeals noted those holdings, Pet. App.
63a, but properly found them inapplicable in a case like this one.
See United States v. Walgren, 885 F.2d 1417, 1426 (9th Cir. 1989)
(court could not conclude that mail fraud conviction on "intangible
rights" theory constituted a jury finding that defendant was guilty of
a state bribery offense not charged in the indictment); United States
v. Mandel, 862 F.2d 1067, 1074 (4th Cir. 1988) (RICO conviction
vacated because "we may not know whether the (intangible rights) mail
fraud or the bribery charges * * *, or both, were considered by the
jury"), cert. denied, 109 S. Ct. 3190 (1989); United States v.
Holzer, 840 F.2d 1343, 1350-1352 (7th Cir.) (recognizing that a RICO
conviction must be upheld even when one predicate act is invalid if a
rational jury necessarily found sufficient predicate acts, but finding
that principle inapplicable on a particular record), cert. denied, 109
S. Ct. 315 (1988); United States v. Kragness, 830 F.2d at 861 ("we
cannot know from the jury's general verdict of guilty which acts it
found (the defendant) had committed"); United States v. Ruggiero, 726
F.2d 913, 921 (2d Cir.) (invalid predicate act had no relationship to
other predicate acts charged), cert. denied, 469 U.S. 831 (1984). /5/
2. Petitioners contend (90-10 Pet. 26-29; 90-46 Pet. 49-55)
that
the "pattern of racketeering activity" element of a RICO offense is
unconstitutionally vague. They rely on the concurring opinion in H.J.
Inc. v. Northwestern Bell Telephone Co., 109 S. Ct. 2893, 2906-2909
(1989), in which Justice Scalia, joined by three other Justices,
expressed doubts about whether the RICO "pattern" element could
withstand a constitutional vagueness challenge. /6/
Absent First Amendment considerations, a defendant may not
challenge a statute for vagueness on the ground that there is some
uncertainty regarding the full reach of the statute in marginal cases
not before the court. Rather, the defendant must show that the
statute is vague as applied to the particular conduct with which he is
charged. See Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494-495 & n.7 (1982); United States v. Powell,
423 U.S. 87, 92 (1975); Parker v. Levy, 417 U.S. 733, 756 (1974)
("One to whose conduct a statute clearly applies may not successfully
challenge it for vagueness."). To sustain such a vagueness attack,
the defendant must show that the statute fails to give a person of
ordinary intelligence reasonable notice that his conduct is forbidden.
See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Connally
v. General Construction Co., 269 U.S. 385, 391 (1926). In this case,
the court of appeals correctly concluded that petitioners "have not
even come close to making this showing(.)" Pet. App. 13a. /7/
Congress drafted the RICO statute to cover a wide range of criminal
activity, but "(o)rganized crime was without a doubt Congress' major
target(.)" H.J. Inc., 109 S. Ct. at 2904. See also United States v.
Turkette, 452 U.S. 576, 588-593 (1981). Given RICO's central purpose
of combatting organized crime, persons of reasonable intelligence have
ample notice that the statute reaches the commission of repeated
criminal acts -- such as murder, gambling, and loansharking -- that
are aimed at furthering the goals of a La Cosa Nostra family. As the
court of appeals concluded, "(a) person of ordinary intelligence could
not help but realize that illegal activities of an organized crime
family fall within the ambit of RICO's pattern of racketeering
activity." Pet. App. 13a. In rejecting a similar vagueness challenge,
the Third Circuit recently reached the same conclusion, stating:
"(T)he application of RICO to the activities of the Scarfo crime
family could not have come as a surprise to the members of the family.
In fact, we have doubts that a successful vagueness challenge to RICO
ever could be raised by defendants in an organized crime case." United
States v. Pungitore, No. 89-1371 (3d Cir. Aug. 1, 1990), slip op. 27.
Petitioner Donato Angiulo and Granito further claim (90-46 Pet. 54;
90-10 Pet. 28-29) that they lacked fair notice that their varied
criminal acts satisfied the "relatedness" aspect of RICO's pattern
requirement. See H.J. Inc., 109 S. Ct. at 2900-2901. That contention
is without merit. In enacting RICO, Congress recognized that
organized criminals engage in "diversified" activities such as
"syndicated gambling, loan sharking, the theft and fencing of
property, the importation and distribution of narcotics and other
dangerous drugs, and other forms of social exploitation." 18 U.S.C.
1961 note (Congressional Statement of Findings and Purpose).
Accordingly, courts have uniformly held that the requisite relatedness
of predicate acts is established when each act benefits or furthers
the goals of the same criminal enterprise. See, e.g., United States
v. Phillips, 664 F.2d 971, 1011-1012 (5th Cir. 1981), cert. denied,
457 U.S. 1136 (1982); United States v. Weisman, 624 F.2d 1118, 1122
(2d Cir. 1980) ("the enterprise itself supplies a significant unifying
link between the various predicate acts"). Since the predicate acts
committed by petitioners advanced the cause of a single organized
crime family, there can be no serious contention that petitioners
lacked notice that they were subject to RICO liability for their
conduct.
3. The Angiulos next contend (Pet. 33-35) that the district court
erred in denying a motion to grant immunity for a prospective defense
witness, Joseph Palladino. /8/ Petitioners urge that immunity should
have been granted on one of two theories: first the district court
should have granted Palladino immunity because his testimony was
essential for an effective defense; second, the district court should
have ordered the government to grant statutory immunity to Palladino
to prevent the government from deliberately distorting the
fact-finding process. The court of appeals properly rejected both
arguments. Because the court assumed the validity of the underlying
theories but found their requirements not satisfied in this case, the
court's decision does not conflict with any decision of any other
court of appeals.
a. In our view, the district court did not have authority to
immunize Palladino absent a request from the government. The federal
immunity statute, 18 U.S.C. 6001 et seq., vests the power to seek
immunity in the Executive Branch, not the Judiciary. In discussing
the immunity statutes, this Court has explained that the authority to
immunize witnesses "is peculiarly an executive one, and only the
Attorney General or a designated officer of the Department of Justice
has authority to grant use immunity." Pillsbury Co. v. Conboy, 459
U.S. 248, 261 (1983). Strong separation-of-powers concerns counsel
against the assertion of judicial power to make immunity decisions for
the government. Not surprisingly, the great majority of the courts of
appeals have held that judges may not immunize defense witnesses
without a request from the prosecution. /9/
The Third Circuit alone has held that immunity may be granted on
the court's initiative, where it is necessary to protect the
defendant's efforts to mount his defense. That court has narrowly
limited the scope of that rule, however:
(I)mmunity must be properly sought in the
district court; the
defense witness must be available to testify;
the proffered
testimony must be clearly exculpatory; the
testimony must be
essential; and there must be no strong
governmental interests
which countervail against a grant of immunity.
Government of the VIrgin Islands v. Smith, 615 F.2d 964, 972 (1980).
Even assuming that Palladino's testimony could be characterized as
essential and exculpatory, the defense was not entitled to immunity
for Palladino under the Smith approach. As the court of appeals
explained, "(u)nlike in Smith, the government here has presented a
number of significant reasons for withholding immunity." Pet. App.
43a. The government indicated that granting Palladino immunity would
impede possible future prosecutions of Palladino for involvement in
organized crime activities, for tax violations, and for violations of
state law. Ibid. Indeed, the government advised the court that at
that very moment, Palladino was the subject of an IRS investigation
arising from business and real estate transactions related to the
charges in that case. Gov't C.A. Br. 101. The court of appeals
correctly concluded that "(t)hese reasons certainly are adequate to
constitute a strong governmental interest in withholding immunity."
Pet. App. 43a. There is no reason to believe the Third Circuit would
have decided the question differently. See United States v. Lowell,
649 F.2d 950, 965 (3d Cir. 1981) (upholding denial of defense witness
immunity in part because government "may yet" prosecute witness for
whom immunity was sought).
b. Nor was statutory immunity for Palladino required in order to
prevent deliberate distortion of the fact-finding process. The courts
that have addressed that theory have held that district courts may
compel the government to immunize defense witnesses in only two
circumstances: where government intimidation provokes a defense
witness into invoking his Fifth Amendment privilege, thereby
withholding testimony that otherwise would have been available to the
defense, or where the government withholds immunity from a defense
witness for the purpose of keeping exculpatory evidence from the jury.
See, e.g., United States v. Pinto, 850 F.2d 927, 932 (2d Cir.), cert.
denied, 109 S. Ct. 174 (1988); United States v. Hooks, 848 F.2d 785,
799 (7th Cir. 1988); United States v. Lord, 711 F.2d 887, 891 (9th
Cir. 1983). In the court of appeals, petitioners argued that the
government intimidated Palladino by (1) informing the court that it
thought Palladino would lie if he testified; (2) transmitting
pertinent information on Palladino to the IRS; (3) reciting to the
court the criminal activities of which it suspected Palladino; and
(4) notifying Palladino, through the IRS, that he was under
investigation for possible tax violations. As the court of appeals
correctly concluded, however, "(n)one of this conduct is sufficient to
warrant a finding of witness intimidation by the prosecution." Pet.
App. 45a.
First, the government's statements that it thought Palladino would
testify falsely and its enumeration of his suspected crimes were not
calculated to intimidate him; those statements were directed not to
Palladino but to the court. The government properly made those
statements in order to explain why it had declined to grant Palladino
statutory immunity. Second, there was nothing improper about the
prosecution's transmission of information to the IRS; investigative
arms of the government frequently share information in which they have
a mutual interest. Finally, the prosecution did not suggest to the
IRS that it contact Palladino, nor does the record show the
prosecution was even aware the IRS would do so. As the court of
appeals observed, the defense "ha(s) not pointed to any direct
communication between the prosecution and Palladino," or "established
the requisite nexus between the government's conduct and Palladino's
decision not to testify." Pet. App. 46a. Compare United States v.
Morrison, 535 F.2d 223 (3d Cir. 1976) (intimidation found where
prosecution repeatedly warned prospective witness that she was liable
to prosecution on drug charges, that if she testified her testimony
could be used against her, and that federal prejury charges could be
brought if she lied).
Nor is there any basis for believing that the prosecution declined
to grant Palladino immunity for the purpose of keeping exculpatory
testimony from the jury. As previously discussed, the government
provided valid reasons for its objection to immunizing Palladino,
including his suspected involvement in other criminal activities and
the government's desire not to hinder possible state and federal
prosecutions. The court of appeals explained that "(t)hese reasons
clearly show that the government's conduct was motivated by something
other than the sole desire to keep Palladino's exculpatory testimony
from the jury." Pet. App. 47a.
4. Petitioners contend (90-46 Pet. 36-43) that the district court
erred in failing to give a jury instruction distinguishing between two
extortionate loans that were made to the same victim. Count 11 of the
initial indictment charged co-defendant Zannino with making an
extortionate $14,000 loan to Donald Smoot. Count 12 of the indictment
charged petitioners Gennaro, Francesco, and Donato Angiulo with making
a separate extortionate loan to Smoot, also in the amount of $14,000.
Shortly after opening statements, Zannino's trial was severed from
that of petitioners, and Count 11 was deleted from the indictment.
Petitioners' defense to Count 12 was that only one $14,000 loan was
made to Smoot, and that it was made by Zannino, acting alone.
Petitioners argue that the district court committed reversible error
by refusing to give a requested jury instruction informing the jury
that Count 12 did not relate to the Zannino loan. Pet. App. 88a.
As the court of appeals correctly concluded, "(a)lthough the court
did not give the precise instruction requested by (petitioners), the
careful instructions that were given more than adequately covered the
situation." Pet. App. 89a. The district court explicitly instructed
the jury that Counts 7 through 11 had been deleted from the indictment
as a result of Zannino's severance. Furthermore, the court read Count
12 to the jury and reviewed each of the elements of the charge. In so
doing, the court explicitly named Gennaro, Francesco, and Donato
Angiulo as the defendants who were charged with the loan. Finally,
the redacted indictment together with written copies of the entire
charge were provided to the jury. Ibid. In light of these
circumstances -- and the fact that Smoot's testimony and the opening
and closing arguments clearly reflected the separateness of the two
loans (see Gov't C.A. Br. 103-104) -- petitioners' proposed
instruction was not necessary to prevent jury confusion about the
subject matter of Count 12.
5. The Angiulos contend (Pet. 43-46) that the district court
committed reversible error in failing to give an instruction
permitting the jury to decide how many gambling businesses petitioners
operated. The indictment charged, both as predicate acts of
racketeering in the RICO counts and as separate substantive offenses,
that petitioners engaged in five distinct gambling businesses.
Petitioners asked for an instruction that the jury could find that
these operations formed only one overall gambling business.
The district court properly declined to give the "one business
only" instruction, because the evidence did not support it. A trial
court is required to give an instruction on the theory of the defense
"only if the evidence provides some foundation for it." United States
v. Durrani, 835 F.2d 410, 419-420 (2d Cir. 1987); United States v.
Tarantino, 846 F.2d 1384, 1400 (D.C. Cir.), cert. denied, 109 S. Ct.
174 (1988); United States v. Westbrook, 896 F.2d 330, 337 (8th Cir.
1990). The government introduced evidence at trial showing that
petitioners' gambling businesses, each of which involved a different
type of gambling, were conducted over different time periods, held in
different locations, and operated by different managers and personnel.
Pet. App. 84a. Petitioners point to nothing in the record indicating
that their gambling operations constituted one business. Indeed, as
the court of appeals noted, the "paucity of * * * references (to the
theory at trial) undercuts any argument that the issue was of such
importance that the failure specifically to instruct on it seriously
impaired a given defense." Ibid. /10/
6. Finally, the Angiulos contend (Pet. 47-49) that the district
court erred in refusing to give specific instructions regarding
voice-identification testimony. The government's evidence at trial
consisted in considerable part of tape-recorded conversations obtained
through court-authorized electronic surveillance. An FBI agent
testified about how the recordings were acquired, and he identified
petitioners' voices on the tapes. At the close of the evidence, the
defense asked the district court to instruct the jury that the agent's
testimony about the voice identifications must be "received with
caution and scrutinized with care," and that "(t)he government's
burden of proof extends to every element of each crime charged,
including the burden of proving beyond a reasonable doubt the identity
of an alleged perpetrator of an offense." Pet. App. 78a.
Although the district court declined to give the specific
instruction requested by petitioners, the requested instruction was
substantially covered by the court's charge. The court gave a general
instruction on witness credibility, informing the jury that it must
determine the credibility of each witness's testimony. The court also
instructed the jury that the written transcripts of the tape
recordings introduced by the government had no independent evidentiary
value and were to be used only to help the jury discern the words on
the tapes. Finally, the court repeatedly emphasized in its charge the
government's burden of proof as to each element of the crimes charged.
As the court of appeals observed, "(t)hese instructions put the
jurors on notice that they were to listen to the tapes themselves and
reach their own determinations, and not blindly base their verdict on
any interpretation of the tapes by government witnesses or on any
government-prepared transcripts." Pet. App. 80a. Moreover, in light
of the prominence given by the defense to the voice-identification
issue, the court of appeals correctly concluded that "a jury receiving
the court's general instructions on witness credibility, the
government's burden of proof, and the limited purpose of the
transcripts would understand that (the agent's) testimony was to be
scrutinized with care." Id. at 81a. /11/
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
JOEL M. GERSHOWITZ
Attorney
AUGUST 1990
/1/ Petitioners also unsuccessfully challenged the impartiality of
the jury, Pet. App. 15a-32a, a variety of evidentiary and procedural
rulings, id. at 32a-39a, 47a-53a, the sufficiency of the evidence on
certain counts, id. at 65a-67a, and certain other aspects of the jury
charge, id. at 67a-77a, 85a-87a, 89a-91a. Petitioners do not renew
those claims in this Court.
/2/ Although the court of appeals did not have to reach the issue,
there is reason to doubt that the Street-Stromberg-Yates analysis
applies in a case such as this, where the evidence as to one of the
predicate acts is factually insufficient but the charge is not legally
defective. In these circumstances, it is reasonable to assume that
the jury acted rationally in convicting on the basis of the predicate
acts that were supported by the evidence and not on the basis of the
predicate act that was not sufficiently proved. In that respect, this
case is quite different from Street, Stromberg, and Yates, where the
jury could rationally have relied on an impermissible theory, not
having any basis for knowing that it was legally defective.
/3/ There was no doubt about the sufficiency of the evidence to
establish Granito's role in the murder. In a tape-recorded
conversation, Granito described a murder attempt on Patrizzi, stating:
"We had (Patrizzi) ready last Friday. Oh, we had him Friday cause he
said 'c'mon we'll go for coffee.' We had a place. We're gonna take
him in a house and strangle him ...." Gov't C.A. Br. 32; see also id.
at 33 (describing Granito's agreement to procure a telephone number
that could be used to identify Patrizzi's whereabouts in order to
murder him). The source of doubt with respect to the accessory charge
was whether Frederick Simone was a principal in that murder. Pet.
App. 55a-60a. The court recited ample evidence that Granito planned
the murder and engaged in attempts to commit it, id. at 58a, but
concluded that "(w)hether Simone participated in the actual murder is
wholly unclear from the evidence." id. at 60a.
/4/ Granito argues (Pet. 24) that it would not necessarily be
inconsistent, in a particular case, for a jury to convict a defendant
of being an accessory to a crime and to acquit him of conspiring to
commit the crime. But the court of appeals understood the different
elements of the two crimes, Pet. App. 62a n.16; it simply concluded,
on the facts of this case, that a rational jury could not have found
Granito guilty of being an accessory without finding every element
required to convict him of conspiracy.
/5/ Granito also relies (Pet. 18) on United States v. Brown, 583
F.2d 659, 669-670 (3d Cir. 1978), cert. denied, 440 U.S. 909 (1979),
in which the court, pursuant to a government concession, reversed the
defendant's RICO conviction following the invalidation of two
predicate mail fraud violations. Based on a conflict between Brown
and cases from other circuits, Justices White and Brennan would have
granted certiorari in McCullough v. United States, cert. denied, 484
U.S. 947 (1987). But the Third Circuit subsequently narrowed Brown,
explaining that the RICO conviction there had to be reversed because
"it was impossible to determine whether the jury had relied on invalid
predicate acts." United States v. Zauber, 857 F.2d at 154. In Zauber
itself, the Third Circuit joined other courts of appeals in holding
that a reviewing court must consider whether the record discloses that
the jury necessarily relied on a valid ground for its verdict. In
light of Zauber, the conflict noted in McCullough has disappeared.
See Brennan v. United States, 867 F.2d at 116 (discussing Brown and
Zauber and concluding that "there appears to be no conflict with
respect to" the disposition of RICO convictions where one predicate is
found invalid); United States v. Holzer, 840 F.2d at 1351 (finding no
conflict because of the court's prediction that the Third Circuit
would adopt the rule later embraced in Zauber).
/6/ In H.J. Inc., this Court clarified that "to prove a pattern of
racketeering activity a plaintiff or prosecutor must show that the
racketeering predicates are related, and that they amount to or pose a
threat of continued criminal activity." 109 S. Ct. at 2900. Prior to
H.J. Inc., the courts of appeals had uniformly held that the RICO
statute is not unconstitutionally vague. See United States v. Tripp,
782 F.2d 38, 41-42 (6th Cir. 1986); United States v. Ruggiero, 726
F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831 (1984); United
States v. Martino, 648 F.2d 367, 381 (5th Cir. 1981), cert. denied.
456 U.S. 943 (1982); United States v. Uni Oil, Inc., 646 F.2d 9346,
949-953 (5th Cir. 1981), cert. denied, 455 U.S. 908 (1982); United
States v. Morelli, 643 F.2d 402, 412 (6th Cir.), cert. denied, 453
U.S. 912 (1981); United States v. Aleman, 609 F.2d 298, 305 (7th Cir.
1979), cert. denied, 445 U.S. 946 (1980); United States v. Huber, 603
F.2d 387, 393 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980);
United States v. Swiderski, 593 F.2d 1246, 1249 (D.C. Cir. 1978),
cert. denied, 441 U.S. 933 (1979); United States v. Hawes, 529 F.2d
472, 478-479 (5th Cir. 1976); United States v. Campanale, 518 F.2d
352, 364 (9th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).
/7/ The Court has noted "the more important aspect of the vagueness
doctrine 'is not actual notice, but * * * the requirement that a
legislature establish minimal guidelines to govern law enforcement.'"
Kolender v. Lawson, 461 U.S. 352, 358 (1983). Petitioners, who are
associated with precisely the type of organized crime family that RICO
was principally designed to attack, do not suggest that the RICO
statute failed to give the government sufficient guidelines to use in
determining whether to prosecute them for racketeering violations.
/8/ At trial, the defense stated that it wished to call Palladino,
one of the Angiulos' loansharking victims, to testify that he was not
a loansharking victim at all, but rather a party to a legitimate
business transaction with the Angiulos. After unsuccessfully moving
to restrict the government's cross-examination of Palladino to his
alleged status as a loansharking victim, the defense moved for
immunity for Palladino, claiming that, absent immunity, Palladino
would assert his Fifth Amendment privilege and refuse to testify. The
district court denied the motion, and Palladino did not testify. Pet.
App. 39a.
/9/ See, e.g., United States v. Hooks, 848 F.2d 785, 803 (7th Cir.
1988); Mattheson v. King, 751 F.2d 1432, 1443 (5th Cir. 1985), cert.
dismissed, 475 U.S. 1138 (1986); United States v. Pennell, 737 F.2d
521, 527 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985); United
States v. Thevis, 665 F.2d 616, 638-641 (5th Cir.), cert. denied, 456
U.S. 1008 (1982); United States v. Karas, 624 F.2d 500, 505 (4th Cir.
1980), cert. denied, 449 U.S. 1078 (1981); United States v. Turkish,
623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449 U.S. 1077
(1981); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977);
United States v. Caldwell, 543 F.2d 1333, 1356 n.115 (D.C. Cir.
1974), cert. denied, 423 U.S. 1087 (1976); United States v. Alessio,
528 F.2d 1079, 1080-1082 (9th Cir.), cert. denied, 426 U.S. 948
(1976). See also United States v. Capozzi, 883 F.2d 608, 613 (8th
Cir. 1989), cert. denied, 110 S. Ct. 1947 (1990).
/10/ Contrary to petitioners' apparent contention (90-46 Pet.
43-44) nothing in Sanabria v. United States, 437 U.S. 54 (1978),
suggests that a defendant is always entitled to a "one business only"
instruction. The Court in Sanabria noted only that under 18 U.S.C.
1955, participation in a single gambling business is but a single
offense, 437 U.S. at 70-71; the opinion does not require that the
issue be put to the jury where the uncontradicted evidence shows
multiple gambling businesses. Nor are petitioners correct in
contending (90-46 Pet. 46) that the result here conflicts with the
decisions in United States v. Escobar De Bright, 742 F.2d 1196, 1201
(9th Cir. 1984), and United States v. Duncan, 850 F.2d 1104, 1117 (6th
Cir. 1988), cert. denied, 110 S. Ct. 732 (1990). Both of those cases
make clear that a theory-of-defense instruction need be given only
where the asserted defense has "some foundation" (Escobar De Bright,
742 F.2d at 1201) or "finds some support" (Duncan, 850 F.2d at 1117)
in the evidence; neither approach would have required petitioners'
instruction on this record.
/11/ The Angiulos cite United States v. Duncan, 850 F.2d at
1117-1118, for the proposition that a closing argument by defense
counsel is no substitute for a jury instruction on the theory of the
defense. Pet. 48-49. But the court of appeals did not hold that the
defense closing argument made up for an inadequate jury charge;
rather, it held that the jury instructions given by the court were
sufficient to cover the essential points raised by petitioners'
request, especially when viewed in light of the whole trial, including
the closing arguments.