CORE TERMS: conspiracy, predicate, predicate act, jeopardy, statute of limitations, double jeopardy, indictment, convicted, bribe, limitations period, racketeering, bribery, double jeopardy clause, extortionate, guilty pleas, informant, factual determination, prior conviction, overt act, furtherance, pre-trial, co-defendant, commit, double jeopardy claim, agreement to commit, criminal conduct, federal prison, prior offense, credibility, restaurant
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HeadnotesCOUNSEL: Stanley M. Meyer (DePetris & Meyer, Esqs. of Counsel; Martin G. Weinberg, of Counsel for Defendant-Appellant Carmine Persico) for Defendants-Appellants Carmine Persico, John DeRoss, Anthony Scarpati and Alphonse Persico.
Salvatore J. Marinello (Elaine Jackson Stack, Marinello & Rosenstock) for Defendant-Appellant Andrew Russo.
Susan G. Kellman for Defendant-Appellant Hugh McIntosh.
Michael Young (David Breitbart, of Counsel) for Defendant-Appellant Gennaro Langella.
John L. Pollok (Mark A. Summers, Susan C. Wolfe, Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollock, of Counsel), for Defendant-Appellant Dominic Cataldo.
Aaron R. Marcu, Assistant United States Attorney (Rudolph W. Giuliani, United States Attorney for the Southern District of New York, Bruce A. Baird, Frank H. Sherman, Stuart [**2] E. Abrams, Assistant United States Attorney, of Counsel), for Appellee United States of America.
JUDGES: Newman, Miner and Altimari, Circuit Judges. Jan O. Newman, Circuit Judge, concurring in part and dissenting in part.
OPINIONBY: MINER
OPINION: [*707] MINER, Circuit Judge:
Defendants-appellants Carmine Persico, Hugh McIntosh, Gennaro Langella, John DeRoss, Anthony Scarpati, Alphonse Persico, Andrew Russo and Dominic Cataldo appeal from judgments entered in the United States District Court for the Southern District of New York (Keenan, J.), convicting them of various offenses arising from their participation in the affairs of the Colombo Family racketeering enterprise. All eight appellants were convicted of conspiracy to violate provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (1982), and seven of the appellants were convicted of substantive RICO violations, id. § 1962(c). In addition, the majority of appellants were convicted of various substantive offenses that also were charged as predicate racketeering acts.
On appeal, appellants raise a plethora of claims, only a few of which require discussion. [**3] Russo and McIntosh contend that their convictions for substantive RICO violations and RICO conspiracy must be overturned on statute of limitations and double jeopardy grounds. Langella challenges the district court's decision to empanel an anonymous jury. Carmine Persico claims that the district court's sequestration decisions were improper and he raises a due process challenge to the government's compensation arrangement with a key witness. Various appellants join in these claims, and all appellants challenge the admission of a co-conspirator's statements against them. Of these claims, the only ones that have merit are the statute of limitations claims advanced by Russo and McIntosh regarding their convictions under 18 U.S.C. § 1962(c). As a result, we affirm the judgments convicting all appellants, except that we reverse as to the section 1962(c) convictions of Russo and McIntosh.
I. BACKGROUND
The factual predicate for the convictions giving rise to this appeal has been recounted in numerous recent opinions, see United States v. Langella, 804 F.2d 185 (2d Cir. 1986); United States v. Russo, 801 F.2d 624 (2d Cir. 1986); [**4] United States v. Persico, 774 F.2d 30 (2d Cir. 1985); United States v. Persico, 646 F. Supp. 752 (S.D.N.Y. 1986); United States v. Persico, 621 F. Supp. 842 (S.D.N.Y.1985); United States v. Persico, 620 F. Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir. 1985); United States v. Persico, 520 F. Supp. 96 (E.D.N.Y. 1981), familiarity with which is assumed. A general outline of the schemes alleged is presented below; to the degree necessary, specific factual recitations relating to the claims meriting review on this appeal are included as part of the discussion of those specific claims.
Appellants and six co-defendants were charged, in a 51-count superseding indictment filed on April 4, 1985, with leading, managing and participating in the Colombo Family racketeering enterprise, a professional criminal organization that is one of [*708] the New York City constituent units of the American Mafia, by committing or agreeing to commit numerous crimes. Of the six co-defendants not represented in this appeal, five had their cases severed prior to or during trial, and one, Frank [**5] Falanga, who was found guilty by the jury, died prior to sentencing.
The government delineated the organizational structure of the Colombo Family as follows: Carmine Persico, the Boss of the Colombo Family, assisted by Gennaro Langella, the Underboss, and a Consiglieri, or adviser, led the Family. Alphonse Persico, Carmine's eldest son, also was a trusted adviser and an initiate member of the Family. Anthony Scarpati, John DeRoss and Andrew Russo were Capos, or captains, in the organization. Each Capo is a trusted officer of the Family who leads a crew of "soldiers," consisting of initiated members of the Family. The "soldiers," in turn, command crews of "associates." An "associate" is a criminal colleague who either is ineligible for, uninterested in, or awaiting formal induction into the Mafia. Dominic Cataldo was a soldier in the Family, and Hugh McIntosh and deceased co-defendant Frank Falanga were associates.
All eight appellants were charged with conspiracy to conduct and participate in the affairs of the Colombo Family enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). The enumerated predicate acts of racketeering [**6] included: extortion and labor bribery in the construction and restaurant industries; repeated bribes to an undercover Internal Revenue Service agent; bribery of federal prison officials; loansharking; and distributing large amounts of narcotics. Langella, DeRoss and Scarpati also were charged with conspiracy to participate in the Colombo Family's affairs through the collection of unlawful debts. 18 U.S.C. § 1962(d); see id. § 1962(c). In addition, all eight appellants were charged with the substantive crime of conducting and participating in the affairs of the Colombo Family enterprise through essentially the same pattern of racketeering activity described above, in violation of 18 U.S.C. § 1962(c).
Various appellants were charged with substantive crimes that formed the basis for the patterns of racketeering activity alleged in the RICO counts. Many other charges were dismissed prior to or during trial and are not recounted here. Carmine Persico and Langella were charged with conspiracy to extort money from concrete construction firms in the New York City area, in violation of the Hobbs Act, 18 U.S.C. § 1951 [**7] (1982), and Langella was charged with participating in the commission of ten substantive extortionate acts involving various concrete construction companies. See id.; id. § 1951(b)(2).
The government accused Langella and Carmine Persico of directing severed co-defendant Ralph Scopo, the president of the District Council of Cement and Concrete Workers Union, to extort cash payments from at least ten different concrete contractors. These extortions were part of a two-tier scheme formulated by four of the La Cosa Nostra crime families in the New York City area. Pursuant to this scheme, construction projects worth $ 2 million dollars or less fell within the jurisdiction of the Colombo Family; contractors doing such jobs paid the Colombo Family one percent of the gross contract price of every job in order to prevent labor strife or supply problems. Jobs worth more than $ 2 million dollars were controlled by a consortium comprised of the Colombo Family and three other New York City area crime families. See generally Langella, 804 F.2d at 187-88.
John DeRoss, a vice president of Local 100 of the Hotel Employees and Restaurant Employees International Union, was charged [**8] with soliciting and receiving unlawful payments from, or in connection with, five Manhattan restaurants, in violation of 29 U.S.C. § 186(b)(1) and 18 U.S.C. § 2 (1982). The government alleged that DeRoss participated in a scheme in which bribes were solicited and received from restaurant owners so that the owners would be able to violate the terms of their agreements with Local 100 without interference from the union. The government contended that in one instance a bribe was solicited and received as compensation for allowing [*709] a restaurant owner to retain the lease for his restaurant.
Carmine Persico and Alphonse Persico were charged with paying bribes and gratuities to a federal prison official, in violation of 18 U.S.C. §§ 201(b)(1), 201(b)(3) & 201(f) (1982). In this count, the government contended that the Persicos paid the bribes and gratuities to a prison official at the Federal Correctional Institution in Ashland, Kentucky, in order to obtain, or on account of, various unwarranted privileges the official sought or obtained for Carmine Persico, who then was an inmate at that correctional facility. [**9] The Persicos and Langella also were accused of offering and paying a $ 20,000.00 bribe to a federal official in exchange for Carmine Persico's transfer from one federal prison to another, in violation of 18 U.S.C. § 201(b)(3).
Langella, Scarpati and Russo were charged with conspiracy to make extortionate extensions of credit, see 18 U.S.C. §§ 891, 892, and conspiracy to collect extension of credit using extortionate means, see id. §§ 891, 894. The government's theory was that these appellants and others employed the Colombo Family as a vehicle for lending money at exorbitant rates of interest, and collecting loansharking debts, through the threatened use of force and violence if the loans were not repaid. Langella and Scarpati also were accused of specific collections of credit using extortionate means, in violation of 18 U.S.C. § 894.
Numerous other acts of racketeering included as predicate acts in the RICO counts were not charged as substantive offenses. Four appellants, including McIntosh and Russo, made pretrial motions to dismiss from the RICO counts, on double jeopardy grounds, the predicate acts [**10] involving the repeated bribery of an undercover IRS agent. These acts, which were not charged as substantive offenses, had been the subject of an investigation and prosecution in the Eastern District of New York, which resulted in guilty pleas by the four appellants to a few of the charges against them. The district court denied the motion, United States v. Persico, 620 F. Supp. 836 (S.D.N.Y. 1985), and, on an interlocutory appeal, we affirmed, United States v. Persico, 774 F.2d 30 (2d Cir. 1985).
Trial commenced on October 15, 1985, and, after an eight-month trial, the jury returned guilty verdicts against all eight appellants on the RICO conspiracy count. All appellants save DeRoss also were convicted on the substantive RICO count. Carmine Persico and Langella were convicted of extortionate conspiracy in the concrete construction industry, and Langella was convicted of participation in the extortion of money from specific construction firms. DeRoss was acquitted of the substantive Hobbs Act counts concerning the restaurant industry. Carmine and Alphonse Persico were convicted of paying an illegal gratuity to a federal prison official, and the [**11] Persicos and Langella also were convicted of offering to pay a bribe to a federal official. Guilty verdicts were returned against Langella and Scarpati both for conspiracy to make extortionate extensions of credit using extortionate means; Russo was acquitted of those conspiracy counts. Langella and Scarpati also were convicted of making and collecting various specific extortionate extensions of credit.
This appeal followed the imposition of sentences in the district court.
II. DISCUSSION
A. Double Jeopardy
The predicate acts that underlie McIntosh's and Russo's RICO convictions also were the subject of a prior investigation and prosecution in the Eastern District of New York that resulted in guilty pleas by McIntosh and Russo to a few of those acts. The Eastern District investigation revealed that Russo, McIntosh and others had offered and paid numerous bribes to IRS Agent Annicharico, who was posing as a corrupt law enforcement official, in what has come to be known as the Annicharico bribe scheme. Pursuant to that scheme, Russo, McIntosh and Carmine Persico bribed Annicharico to prevent the commencement of federal criminal prosecution [*710] of Charles Panarella [**12] and Russo, and to influence the disposition of Carmine Persico's application to vacate his sentence. McIntosh and Carmine Persico bribed Annicharico to prevent Persico's transfer from a federal prison in Manhattan. Russo and Cataldo bribed the agent to prevent the commencement of a federal criminal prosecution against Cataldo. Russo also bribed Annicharico to prevent the commencement of a state perjury prosecution and to eliminate back tax liability for an associate and a corporate entity.
McIntosh and Russo were indicted in the Eastern District of New York for their roles in the Annicharico bribe scheme. On April 26, 1982, Russo pleaded guilty to conspiracy to bribe a public official, see 18 U.S.C. § 371 (1982), and obstruction of justice, id. § 1505. On November 1, 1982, after four days of trial, McIntosh pleaded guilty to bribery of a public official. Id. § 201(b). Subsequent to the guilty pleas, several other charges against McIntosh and Russo were dismissed on the government's motion.
After the filing of the superseding indictment in the instant case, Russo and McIntosh moved pre-trial to have the charges against them dismissed, claiming [**13] that the RICO charges predicated on acts relating to the Annicharico bribe scheme were barred by their guilty pleas in the Eastern District prosecution. n1 The district court rejected their pre-trial double jeopardy claims, and we affirmed the district court's judgment on interlocutory appeal. See United States v. Persico, 620 F. Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir. 1985). McIntosh's and Russo's attempts to raise a double jeopardy challenge to their convictions after trial also were rejected by the district court. See United States v. Persico, 646 F. Supp. 752, 759-60 (S.D.N.Y. 1986). Subsequent motions to vacate their Eastern District criminal convictions, see 28 U.S.C. § 2255 (1982), were rejected in the district court and on appeal. See United States v. Russo, 801 F.2d 624 (2d Cir. 1986). On this appeal, Russo and McIntosh again contend that the double jeopardy clause bars their RICO convictions. We disagree.
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n1 We note that all of the racketeering acts charged against McIntosh were committed as part of the Annicharico bribe scheme, whereas the RICO charges against Russo included racketeering acts unrelated to that scheme. However, the jury indicated that its verdict against Russo was based solely on the Annicharico bribe scheme predicate acts. Because of the manner in which we dispose of Russo's and McIntosh's double jeopardy challenges, infra, the differences between their claims are irrelevant for purposes of our decision, and we will discuss their claims together.
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The double jeopardy clause of the fifth amendment declares: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V. The double jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). The contentions raised by Russo and McIntosh implicate primarily the second aspect of double jeopardy protection.
In part employing the analysis set forth by the Supreme Court in Garrett v. United States, 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985), Judge Keenan rejected the double jeopardy claims of McIntosh and Russo. In Garrett, the Supreme Court "upheld the validity of using a prior criminal conviction to support a continuing criminal enterprise conviction under 21 U.S.C. § 848, at least where the 'enterprise' activity continues four months past the date of the conduct underlying the prior conviction." Persico, 774 F.2d at 32. [**15] Under the two-step analysis employed by the Supreme Court in reaching that conclusion, the trial court initially must determine whether the legislature intended that each violation be a separate offense. Garrett, 471 U.S. at 778. If such intent is evident, the court must then determine whether prosecution for the later offense after an earlier prosecution for a predicate offense violates the double jeopardy clause, under the particular circumstances of the case. Id. at 786.
[*711] In affirming Judge Keenan's judgment denying Russo's and McIntosh's pre-trial motions, we endorsed Judge Keenan's determination that "Congress intended to permit conduct resulting in prior convictions to be used as predicate acts of racketeering activity to establish subsequent RICO convictions," Persico, 774 F.2d at 32 (citations omitted), as well as his conclusion that a trial on the then-pending RICO charges was not barred by the double jeopardy clause, id. We noted that the indictment alleged that the substantive conduct and conspiracy continued, with the participation of all appellants, well beyond the date of the indictments in the Annicharico [**16] bribe scheme case. However, we specifically declined to decide whether evidence of post-plea unlawful conduct, or evidence accumulated after the plea demonstrating participation in the criminal enterprise, was required in order to defeat a double jeopardy challenge to a subsequent indictment. Id. After trial, Judge Keenan determined that the government sufficiently had demonstrated that Russo and McIntosh continued as members of the criminal enterprise charged well after pleading guilty in the Eastern District. Persico, 646 F. Supp. at 760. That judgment is the focus of their current appeal.
As an initial matter, we entertain serious doubt as to whether evidence of post-plea involvement is necessary to defeat a double jeopardy challenge to RICO convictions based on predicate acts that were the subject of prior guilty pleas. The Supreme Court in Garrett assumed, for purposes of decision, that the predicate act resulting in conviction was a lesser included offense within the continuing criminal enterprise charge. As the Court noted, the subsequent prosecution would not have been barred on double jeopardy grounds even assuming that lesser included offense [**17] principles applied. See Garrett, 471 U.S. at 790 (majority opinion); id. at 797 (O'Connor, J., concurring). In fact, the Court cautioned against "ready transposition" of lesser included offense principles derived from cases such as Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977) (misdemeanor of joyriding lesser included offense within felony of auto theft), to complex, "multilayered conduct" cases. Garrett, 471 U.S. at 789. Moreover, several circuits have held that, in similar contexts, the double jeopardy clause is not a bar to RICO prosecutions predicated on racketeering acts that were the subject of prior prosecutions and convictions. See, e.g., United States v. Grayson, 795 F.2d 278, 282-83 (3d Cir. 1986) (admission of two prior drug conspiracy convictions as predicate acts for RICO substantive charge not violative of double jeopardy clause), cert. denied, 479 U.S. 1054, 107 S. Ct. 927, 93 L. Ed. 2d 978 (1987); United States v. Boldin, 772 F.2d 719, 728-30 (11th Cir. 1985) (prior convictions for drug offenses may be used as predicate [**18] acts in subsequent RICO prosecutions); United States v. Licavoli, 725 F.2d 1040, 1049-50 (6th Cir.) (prior bribery conviction properly employed as a predicate act in subsequent RICO conviction), cert. denied, 467 U.S. 1252, 82 L. Ed. 2d 840, 104 S. Ct. 3535 (1984); United States v. Phillips, 664 F.2d 971, 1015 (5th Cir. Unit B 1981) ("a defendant may be convicted for the predicate acts which form the basis of a RICO charge and subsequently charged under RICO"), cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982); United States v. Brooklier, 637 F.2d 620, 624 (9th Cir. 1980) (extortionate act properly employed as a predicate racketeering act despite prior RICO conviction involving conspiracy to commit that extortion as well as others), cert. denied, 450 U.S. 980, 67 L. Ed. 2d 815, 101 S. Ct. 1514 (1981).
We need not reach this thorny issue, however, because, as Judge Keenan found, the government supplied ample evidence of Russo's and McIntosh's continued participation in the affairs of the Colombo Family enterprise after their guilty pleas in the Eastern District. [**19] The government demonstrated at trial that Russo was a leader of, and an active participant in, the Colombo Family at least until April 1985, when the superseding indictment was filed. Not only was there testimony from Fred DeChristopher, Russo's brother-in-law, regarding [*712] Russo's continued membership in the Colombo Family, but the government also provided evidence that Russo and his sons skimmed money in 1983 and 1984 from the gambling proceeds of a cruise ship casino. Further, the government demonstrated that McIntosh continued to participate in the Colombo Family enterprise's affairs after his guilty plea. DeChristopher testified that Carmine Persico told him that McIntosh remained a member of the enterprise and that when McIntosh was in prison as a result of the Eastern District prosecution, Persico had authorized weekly payments to McIntosh's wife. The government also showed that in November and December of 1978, McIntosh accepted 28 collect telephone calls from Carmine Persico. Later testimony revealed that these calls enabled Carmine Persico to conduct the Colombo Family's affairs while in prison. Among the other evidence was a 1982 telephone conversation between Langella [**20] and McIntosh, intercepted by the government, in which they arguably discussed Colombo Family matters. Based on the foregoing and on all of evidence presented, we hold that the government sufficiently established that Russo and McIntosh remained members of the Colombo Family after their guilty pleas in the Eastern District and we affirm Judge Keenan's judgment denying Russo's and McIntosh's motions to set aside the jury verdict on double jeopardy grounds.
We also find no error in Judge Keenan's decision to rule on the merits of McIntosh's and Russo's double jeopardy claims after trial, rather than submitting those claims to the jury in some manner. "Double jeopardy claims [do] not implicate the issue of [a defendant's] guilt or innocence, which a jury must decide, but rather the right of the government to bring the action itself." United States v. MacDougall, 790 F.2d 1135, 1142 (4th Cir. 1986); see United States v. H.E. Koontz Creamery, Inc., 232 F. Supp. 312, 315-16 (D. Md. 1964); see also 1 C. Wright, Federal Practice and Procedure § 194, at 715 & n.17 (1982 & Supp. 1987). For that reason, district courts routinely respond to pre-trial [**21] motions to dismiss indictments on double jeopardy grounds, and, if appropriate, conduct evidentiary hearings to determine whether a defendant has a valid double jeopardy claim. See, e.g., United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.) (describing procedure for district court to follow in determining pre-trial double jeopardy claim), cert. denied, 444 U.S. 963, 62 L. Ed. 2d 375, 100 S. Ct. 449 (1979). We perceive no reason why a double jeopardy claim should not be decided by the trial judge throughout all stages of the trial, even when, as in the instant case, the claim requires factual determinations. The assertion of a valid double jeopardy claim at any stage in the trial "precludes trial and thus removes from the jury the issue of guilt or innocence." MacDougall, 790 F.2d at 1142; cf. United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980) (defense of outrageous government conduct properly decided by judge, rather than jury, because it bars government from invoking judicial processes to obtain conviction). Moreover, unlike statute of limitations or venue claims, which merely require a defendant [**22] to refute the evidence presented by the government on a particular charge, the type of double jeopardy challenge presented by Russo and McIntosh requires a defendant to show that the acts alleged as part of the current prosecution already have been the subject of successful prior prosecutions. When double jeopardy claims are determined by a trial judge as opposed to a jury,
the likelihood of compelling the defendant to make possibly incriminating statements to the jury about the earlier offense in his defense to the subsequent charge or of prejudicing the jurors against the defendant by virtue of their hearing about the charge and evidence in the previous case is thus eliminated.
Stricklin, 591 F.2d at 1119. Rather than requiring the district court to charge the jury so as to encompass this type of double jeopardy claim, we think it appropriate for the district court to rule on the claim before, during or after trial.
B. Statute of Limitations
Russo and McIntosh both contend that their RICO convictions are barred by the [*713] five-year statute of limitations applicable to RICO prosecutions, 18 U.S.C. § 3282 [**23] (1982); see United States v. Walsh, 700 F.2d 846, 851 (2d Cir.), cert. denied, 464 U.S. 825, 78 L. Ed. 2d 102, 104 S. Ct. 96 (1983), because the last predicate acts ascribable to them occurred more than five years prior to the date of the indictment in the instant case. Judge Keenan denied McIntosh's pre-trial motion to dismiss the indictment on statute of limitations grounds, Persico, 621 F. Supp. at 872-73, and denied McIntosh's and Russo's post-trial statute of limitations motions, Persico, 646 F. Supp. at 760.
1. RICO Conspiracy
The government argues, and Judge Keenan determined, that the statute of limitations for RICO conspiracy should not begin to run until the accomplishment or abandonment of the objectives of the conspiracy. We agree. In order to convict a defendant of RICO conspiracy, only an agreement to commit two or more predicate acts, rather than the acts themselves, need be proven. United States v. Teitler, 802 F.2d 606, 612-13 (2d Cir. 1986); United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984); [**24] United States v. Barton, 647 F.2d 224, 237 (2d Cir.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 152, 102 S. Ct. 307 (1981). By his agreement, a RICO defendant signals his membership in a conspiracy to conduct the affairs of the charged enterprise. Thus, the RICO conspiracy statute is most closely analogous to other conspiracy statutes pursuant to which overt acts in furtherance of the conspiracy need not be pleaded or proven. See, e.g., United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) (narcotics distribution and importation conspiracies); United States v. Smith, 464 F.2d 1129, 1134 (2d Cir.) (conspiracy to make extortionate extensions of credit), cert. denied, 409 U.S. 1023, 93 S. Ct. 462, 34 L. Ed. 2d 314 (1972); United States v. Tolub, 187 F. Supp. 705, 709 (S.D.N.Y. 1960) (Kaufman, J.) (Hobbs Act conspiracy). Under such statutes, "for limitations purposes, the conspiracy may be deemed terminated when, in a broad sense, its objectives have either been accomplished or abandoned, not when its last overt act was committed." Grammatikos, 633 F.2d at 1023. [**25]
The statute of limitations applicable to RICO conspiracy provides that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found . . . within five years after such offense shall have been committed." 18 U.S.C. § 3282 (1982). The limitations period is measured from the point at which the crime is complete. See Toussie v. United States, 397 U.S. 112, 115, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970). Because the RICO conspiracy statute does not require proof of an overt act, we believe that the crime of RICO conspiracy is not complete until the purposes of the conspiracy either have been accomplished or abandoned. See United States v. Coia, 719 F.2d 1120, 1124 (11th Cir. 1983), cert. denied, 466 U.S. 973, 80 L. Ed. 2d 822, 104 S. Ct. 2349 (1984); United States v. Castellano, 610 F. Supp. 1359, 1384 (S.D.N.Y. 1985); but see United States v. Torres Lopez, 656 F. Supp. 257, 262 (D.P.R. 1987) (government must show one overt act by any conspirator in furtherance of conspiracy within limitations period). Although proof of a RICO [**26] conspiracy requires a demonstration that a defendant agreed to commit two or more predicate acts, rather than a simple showing that the defendant agreed to join the conspiracy, the agreement proscribed by section 1962(d) is conspiracy to participate in a charged enterprise's affairs, not conspiracy to commit predicate acts. We perceive no valid reason why the RICO conspiracy statute should be analyzed in a manner inconsistent with other conspiracy statutes not requiring proof of overt acts.
Based on the foregoing, we conclude that the statute of limitations for the RICO conspiracy charges at issue here did not begin to run at least until the filing of the indictment. As Judge Keenan noted, the government amply demonstrated that the conspiracy to conduct the affairs of the Colombo Family continued until, and well after, April 4, 1985, the date the superseding [*714] indictment was filed. Therefore, Russo's and McIntosh's convictions for RICO conspiracy were not barred by the applicable five-year statute of limitations.
2. Substantive RICO Counts
The district court determined that the statute of limitations for 18 U.S.C. § 1962(c) should begin [**27] to run from the last overt act committed by any member of the group charged. We reach a different conclusion based on prior circuit precedent.
In United States v. Walsh, 700 F.2d 846 (2d Cir.), cert. denied, 464 U.S. 825, 78 L. Ed. 2d 102, 104 S. Ct. 96 (1983), we held that in order to establish a defendant's violation of section 1962(c), the government must prove that the defendant committed two or more predicate offenses, at least one of which occurred within the federal five-year statute of limitations for non-capital offenses. Id. at 851. In rejecting Walsh's claim that the evidence indicated only that a co-defendant had committed a timely predicate act, we emphasized that there was sufficient evidence that Walsh also had committed the act. Central to our analysis was the fact that Walsh himself had participated in a timely predicate act. Similarly, in United States v. Srulowitz, 785 F.2d 382 (2d Cir. 1986), we analyzed Srulowitz's statute of limitations claim solely with regard to predicate acts alleged against him, despite the apparent commission of timely predicate acts by other members of the charged [**28] enterprise. Id. at 390. See also United States v. Cody, 722 F.2d 1052, 1056-57 (2d Cir. 1983) (government must prove defendant committed at least one timely predicate act), cert. denied, 467 U.S. 1226, 81 L. Ed. 2d 873, 104 S. Ct. 2678 (1984); Castallano, 610 F. Supp. at 1383 ("Section 3282 does require that each defendant be named in at least one act of racketeering which is alleged to have occurred in the last five years."); United States v. Field, 432 F. Supp. 55, 59 (S.D.N.Y. 1977) (statute runs from date of last act of racketeering), aff'd mem., 578 F.2d 1371 (2d Cir.), cert. dismissed, 439 U.S. 801, 58 L. Ed. 2d 94, 99 S. Ct. 43 (1978); but see United States v. Torres Lopez, 656 F. Supp. at 261 (act by any member of enterprise satisfies statute of limitations).
We find the government's attempt to distinguish Srulowitz and Walsh as "single defendant cases" unpersuasive. Both Walsh and Srulowitz had co-defendants, as the respective opinions bearing their names make clear. See Walsh, 700 F.2d at 851; Srulowitz, 785 F.2d at 383. [**29] Even if we were to assume that Walsh and Srulowitz involved single defendants, under the government's statute of limitations analysis it would have been sufficient for us to determine whether any unindicted member of the enterprise had committed timely predicate acts, a search that we did not undertake. Instead, we focused solely on the defendant who raised the limitations defense and determined that he had committed one predicate act within the limitations period.
Based on the reasoning of our prior decisions, we conclude that in order to satisfy the statute of limitations for section 1962(c), the government must demonstrate that a defendant committed at least one predicate racketeering act within the limitations period. Such a conclusion comports with the structure of section 1962, which treats conspiracies to violate RICO and substantive RICO offenses separately. The focus of section 1962(c) is on the individual patterns of racketeering engaged in by a defendant, rather than the collective activities of the members of the enterprise, which are proscribed by section 1962(d). We reject the government's attempt to analyze section 1962(c) as if it were a second RICO conspiracy [**30] statute. Therefore, because the government failed to demonstrate that either Russo or McIntosh committed a predicate act within the five-year statute of limitations, we reverse their convictions under section 1962(c). n2
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n2 On appeal, the government contends that reversal of Russo's conviction is not warranted because he was a fugitive for nearly two years and therefore that the statute of limitations was tolled during that time. See 18 U.S.C. § 3290 (1982) ("No statute of limitations shall extend to any person fleeing from justice."). However, the government did not present this argument to the district court, nor was Russo allowed the opportunity to defend against it. Instead, the government requests that we determine whether the statute of limitations was tolled as to Russo based on random references culled from the record.
As the Supreme Court noted in a similar context, the government "may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation." Steagald v. United States, 451 U.S. 204, 209, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981) (emphasis added) (factual question whether defendant was "resident" of house for purposes of determining if he had reasonable expectation of privacy in that dwelling waived by, inter alia, government's failure to raise issue in lower courts). See United States v. Kimmel, 741 F.2d 1123, 1125 (9th Cir. 1984) (review of issues in dismissal of indictment on due process and double jeopardy grounds limited to those actually raised by government at hearing on motion to dismiss); United States v. Thompson, 710 F.2d 1500, 1504 (11th Cir. 1983) (alternate justifications for search waived by government's failure to raise them at suppression hearing), cert. denied, 464 U.S. 1050, 79 L. Ed. 2d 190, 104 S. Ct. 730 (1984); United States v. Sanchez, 689 F.2d 508, 509 n.1 (5th Cir. 1982) (government waived issue of defendant's standing to complain of stop and search by failing to raise it below); United States v. Gonsalves, 675 F.2d 1050, 1055 n.9 (9th Cir.) (government waived right to raise issue whether jury, rather than judge, should determine if defendant was fleeing from justice under 18 U.S.C. § 3290 by failing to raise it in timely fashion), cert. denied, 459 U.S. 837, 74 L. Ed. 2d 78, 103 S. Ct. 83 (1982). Here, the government apparently concedes that it did not raise this issue in the district court, and has offered no justification for its failure to do so. Therefore, we deem the issue to be waived.
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[*715] C. Admissibility of Coconspirator's Statements
Carmine Persico, Alphonse Persico, DeRoss, Scarpati and Russo, joined by the three remaining appellants to the extent relevant to them, all claim that the district court committed reversible error by admitting Fred DeChristopher's testimony about conversations he had with Carmine Persico when Persico was "in hiding" at DeChristopher's house. We disagree.
Statements offered against a party and made by a coconspirator of that party in the course of and in furtherance of a conspiracy are admissible against that party. Fed. R. Evid. 801(d)(2)(E); see, e.g., United States v. Rahme, 813 F.2d 31, 35-36 (2d Cir. 1987); United States v. Paone, 782 F.2d 386, 390-91 (2d Cir.), cert. denied, 479 U.S. 882, 107 S. Ct. 269, 93 L. Ed. 2d 246 (1986), and cert. denied, 483 U.S. 1019, 107 S. Ct. 3261, 97 L. Ed. 2d 761 (1987). The district court found that the elements of Rule 801(d)(2)(E) were satisfied here and held that DeChristopher's testimony regarding Carmine Persico's statements to him was admissible. Appellants argue principally that the statements [**32] made were not in furtherance of the conspiracy and that the conspiracy had ended by the time the statements were made. Absent an abuse of discretion, the district court's decision should not be disturbed on appeal. See Rahme, 813 F.2d at 36; United States v. Acosta, 763 F.2d 671, 679 (5th Cir.), cert. denied, 474 U.S. 863, 106 S. Ct. 179, 88 L. Ed. 2d 148 (1985); see also United States v. Moon, 718 F.2d 1210, 1232 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984). We perceive no abuse of discretion by Judge Keenan.
The evidence provided by the government undermines completely appellants' contention that the conspiracy ended when the original indictment was unsealed in October 1984, prior to the time when Carmine Persico's damaging statements were made. Rather, the government amply demonstrated that the conspiracy was ongoing at least until the time of trial. In fact, the reason for Carmine Persico's presence in the DeChristopher household, as the government's proof convincingly demonstrated, was to avoid prosecution under the indictment in this case. That some [**33] of the conspirators had been indicted and were under arrest is unimportant; as some of the charges in this case indicate, the Colombo Family was quite capable of continuing operations despite the fact that some of its members were incarcerated. Moreover, some members of the conspiracy found prison no obstacle to continuing their association with the enterprise. The very purpose of one of the bribe schemes charged was to ensure that Carmine Persico would have ready access to a telephone [*716] while in prison, so that he could continue to conduct the Colombo Family's affairs while incarcerated. In this type of enterprise, the mere imprisonment of some of its members does not precipitate the demise of the conspiracy. See, e.g., United States v. Agueci, 310 F.2d 817, 839 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963); United States v. Guerro, 693 F.2d 10, 13 (1st Cir. 1982). Therefore, we agree with Judge Keenan's determination that the conspiracy continued beyond the period during which Carmine Persico made his damaging admissions to DeChristopher.
We also find no error in Judge Keenan's [**34] determination that Carmine Persico's statements to DeChristopher were in furtherance of the conspiracy. DeChristopher already was a member of the conspiracy at the time Carmine Persico came to stay at his house, having been involved in the Colombo Family's efforts to skim the gambling profits of a cruise ship. Persico's statements to DeChristopher regarding the activities of the enterprise and the various roles of appellants in it clearly were in furtherance of the enterprise. Among other purposes, the statements "prompt[ed DeChristopher] to respond in a way that facilitate[d] the carrying out of criminal activity," Rahme, 813 F.2d at 35 (citing United States v. Katsougrakis, 715 F.2d 769, 778 (2d Cir. 1983), cert. denied, 464 U.S. 1040, 79 L. Ed. 2d 169, 104 S. Ct. 704 (1984)), informed DeChristopher of the "current status of the conspiracy," id. at 35-36 (quoting United States v. Ammar, 714 F.2d 238, 252 (3d Cir.), cert. denied, 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 344 (1983)), apprised him of the progress of the conspiracy and solicited his assistance, id. at 36 (citing [**35] Paone, 782 F.2d at 391), and informed DeChristopher of the identity and activities of his coconspirators, id. (citing, inter alia, United States v. Perez, 702 F.2d 33, 37 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S. Ct. 2457, 77 L. Ed. 2d 1336 (1983)).
Because neither factual determination challenged by appellants was clearly erroneous, we will not disturb Judge Keenan's decision to admit DeChristopher's damaging testimony into evidence.
D. Compensation Arrangement
Carmine Persico contends that the government's cooperation arrangement with Joseph Iannuzzi amounted to a contingency fee that was so likely to induce him to implicate appellants falsely as to deny them due process. After carefully considering the briefs and record in this case, we conclude that appellants' due process rights were not violated by the admission of Iannuzzi's testimony.
Iannuzzi, a long-time associate of the Gambino Family, entered into an agreement with the FBI to provide information regarding La Cosa Nostra and to testify at trials resulting from the information he supplied. In exchange for his cooperation, Iannuzzi was promised a [**36] monthly salary, as well as a lump sum payment after all trials were completed, the amount of which would be based on the FBI's evaluation of the "overall quality" of any cases that had been developed. A later rendition of this agreement described the lump sum payment as covering reasonable travel and relocation expenses to a new, and presumably safe, location in the United States. The written agreement also specified that the FBI would determine the amount of payment. As the government conceded at oral argument, however, the written agreement did not supersede the prior "understanding." During trial, the entire scope of the relationship between Iannuzzi and the FBI was revealed to the jury, and defense counsel were permitted to cross-examine Iannuzzi thoroughly regarding the compensation arrangement.
Carmine Persico contends that the agreement between Iannuzzi and the FBI constitutes an impermissible contingent fee arrangement. Such arrangements, however, are not per se impermissible. Rather, whether a particular arrangement violates a defendant's due process rights must be assessed on a case-by-case basis. See United States v. Cresta, 825 F.2d 538, slip op. 1, [**37] 15 (1st Cir. 1987). The overwhelming majority of courts, in assessing contingent fee arrangements [*717] with informants, have permitted the informant's testimony to be introduced at trial and have deemed the method of payment "a matter for the jury to consider in weighing the credibility of the informant." United States v. Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979) (citation omitted). See, e.g., United States v. Dailey, 759 F.2d 192, 199-200 (1st Cir. 1985); United States v. Valle-Ferrer, 739 F.2d 545, 546-47 (11th Cir. 1984) (per curiam); United States v. Grimes, 438 F.2d 391, 394-96 (6th Cir.), cert. denied, 402 U.S. 989, 29 L. Ed. 2d 155, 91 S. Ct. 1684 (1971).
In urging us to exclude Iannuzzi's "purchased" testimony, Carmine Persico relies primarily on a recent Fifth Circuit opinion in which a panel majority, in interpreting Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), held impermissible a contingent fee arrangement because the informant was promised compensation if he could implicate a preselected individual and because the payment decisions were based [**38] on the quality of the informant's work in obtaining a conviction. See United States v. Cervantes-Pacheco, 800 F.2d 452, 457-60 (5th Cir. 1986).
Were we to adopt that rationale, the government's arrangement with Iannuzzi conceivably could fall within the Cervantes-Pacheco proscription against compensation based on the quality of the informant's work. But see United States v. Edwards, 549 F.2d 362, 365 (5th Cir.) (statement that reward depended on "final results" not sufficient to mandate exclusion of testimony), cert. denied, 434 U.S. 828, 98 S. Ct. 107, 54 L. Ed. 2d 87 (1977). However, Persico's reliance on Cervantes-Pacheco has proven to be ill-advised: The Fifth Circuit, sitting en banc, recently reversed the panel majority in Cervantes-Pacheco and overruled Williamson. See United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir