ANTHONY INDELICATO, PETITIONER V. UNITED STATES OF AMERICA
No. 88-1881
In the Supreme Court of the United States
October Term, 1989
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinions of the court of appeals affirming petitioner's
conviction (Pet. App. 42a-90a) are reported at 868 F.2d 524. The
opinion of the en banc court of appeals holding that petitioner's
conduct constituted a pattern of racketeering activity (Pet. App.
3a-41a) is reported at 865 F.2d 1370.
JURISDICTION
The judgment of the court of appeals was entered on January 31,
1989. A petition for rehearing was denied on March 21, 1989. Pet.
App. 91a-92a. The petition for a writ of certiorari was filed on May
19, 1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether the evidence was sufficient to prove that petitioner
conspired to participate in the conduct of an enterprise through a
pattern of racketeering activity.
2. Whether petitioner's racketeering conspiracy conviction was
barred by the statute of limitations.
STATEMENT
Following a jury trial in the United States District Court for the
Southern District of New York, petitioner was convicted of
participating in the affairs of an enterprise through a pattern of
racketeering activity, in violation of the RICO statute, 18 U.S.C.
1962(c), and of conspiring to violate the RICO statute, in violation
of 18 U.S.C. 1962(d). He was sentenced to consecutive terms of 20
years' imprisonment and fined $50,000. The court of appeals affirmed
petitioner's conviction on the RICO conspiracy charge but reversed on
the substantive RICO charge. Pet. App. 45a-46a.
1. The evidence at trial showed that for decades the "Commission"
has been the national ruling body of La Cosa Nostra, or the Mafia, in
the United States. The Commission controls and coordinates the
criminal activities of Mafia groups known as "families." There are
five such families in New York: the Genovese, Gambino, Lucchese,
Colombo, and Bonanno families. The head or "boss" of each New York
family serves on the Commission. Each family has an underboss and a
counselor who also work closely with the Commission to accomplish its
unlawful objectives. The criminal business of the Commission is
carried out by "soldiers" (formally inducted members of the various
families) and "capos" (middle-level members, or captains). Pet. App.
6a-7a, 46a-47a. /1/
The Commission acted to coordinate the criminal activities of La
Cosa Nostra, to resolve controversies that arose among various
families, and to settle leadership disputes within particular
families. The Commission is the sole authority within La Cosa Nostra
with the power to order the assassination of the boss of a family.
From the early 1970s to the early 1980s, the Bonanno family was
beset by internal factional disputes and was not represented directly
on the Commission. In 1979, the Commission ordered the murder of
Carmine Galante, the boss of the Bonanno family, and two of Galante's
associates, Leonard Coppola and Giuseppe Turano, as a means of
realigning the family's leadership in order to resolve these
long-simmering disputes. Pet. App. 6a-7a, 46a-47a. /2/
Petitioner, a soldier in the Bonanno family, and fellow Bonanno
soldier Dominic Trinchera, among others, carried out the Commission's
plan to assassinate Galante and his associates. They prepared for the
murders for several months, obtaining a stolen getaway car and a cache
of firearms. The man who supplied the weapons testified that
Trinchera had boasted that his position in the family would improve
after the executions. Pet. App. 7a, 47a, 49a; Gov't En Banc Br.
9-11.
On July 12, 1979, Galante and Turano met for lunch on the rear
terrace of a Brooklyn restaurant called Joe & Mary's. About an hour
later, two of petitioner's co-conspirators arrived with the third
targeted victim, Coppola. Although Coppola initially dined separately
from Galante and Turano, he was later invited to join them. Shortly
before 3 p.m., petitioner and three other men arrived in the getaway
car. All four wore ski masks and were armed. Petitioner and two of
his masked associates entered the restaurant, walked directly to the
rear patio, and shot Galante, Turano, and Coppola at point-blank
range. The two co-conspirators who had been dining with Coppola
joined in the shooting. Pet. App. 7a-8a; Gov't En Banc Br. 11-12.
Petitioner fled in the getaway car. After abandoning the car,
petitioner reported directly to the headquarters of the Gambino family
underboss, Aniello Dellacroce, who had been monitoring the plans to
kill Galante. Outside Dellacroce's headquarters, petitioner was
congratulated by the counselor for the Bonanno family. Pet. App. 8a;
Gov't En Banc Br. 13-15.
With the Commission's approval, petitioner was promoted to capo in
the Bonanno family in 1981. Trinchera was also promoted to the
position of capo. Recorded conversations of petitioner's associates
showed that petitioner continued his association with the Commission
as late as 1984. Pet. App. 8a; Gov't En Banc Br. 17-18.
2. While petitioner's appeal was pending before a panel of the
court of appeals, the en banc court considered and rejected his claim
that the three murders committed on July 12, 1979, did not constitute
a "pattern of racketeering activity" within the meaning of the RICO
statute, 18 U.S.C. 1961(5). Pet. App. 3a-41a. The en banc court
explained that "proof of two acts of racketeering activity without
more does not suffice to establish a RICO pattern"; rather, a pattern
requires that the racketeering acts be interrelated and that there be
"continuity or a threat of continuity." Id. at 28a. Those
requirements, the court ruled, can be met even if the predicate
racketeering acts are close together in time. Id. at 28a-29a. In
such a case, "evidence of continuity or the threat of continuity will
simply have to come from facts external to those two acts." Id. at
33a. The court observed that "a pattern may be found, for example, in
the simultaneous commission of like acts for similar purposes against
a number of victims." Ibid. The court also noted that a defendant's
association with an organized crime group may "help to establish that
the defendant's own acts constitute a pattern within the meaning of
RICO." Id. at 35a.
Applying those standards, the court had "little difficulty in
concluding that (petitioner's) participation in the three Bonanno
family murders as a representative of the Commission constituted a
pattern of racketeering activity within the meaning of RICO." Pet.
App. 36a. Three persons were targeted for execution, and the three
murders constituted more than one act. The murders were related, in
that the purpose of each was to facilitate the change in leadership of
the Bonanno crime family. The requisite threat of continuity was also
present: "(t)hough the murders themselves were quickly completed,
both the nature of the Commission, which was the alleged RICO
enterprise, and the criminal nature of the Bonanno family, control of
which the murders were designed to achieve, made it clear beyond
peradventure that there was a threat of continuing racketeering
activity." Id. at 36a-37a. /3/
3. After the en banc court rendered its decision, the panel
affirmed petitioner's RICO conspiracy conviction. Pet. App. 42a-90a.
The court rejected petitioner's argument that the conviction was
barred by the five-year statute of limitations, 18 U.S.C. 3282. Pet.
App. 59a-61a. Following its decision in United States v. Persico, 832
F.2d 705 (1987), cert. denied, 108 S. Ct. 1995 (1988), the court held
that "a RICO conspiracy offense is complete, thus commencing the
running of the five-year statute of limitations, only when the
purposes of the conspiracy have either been accomplished or
abandoned." Pet. App. 60a. For the statute of limitations to be
satisfied in this case, the conspiracy must have continued past
November 19, 1980 (five years prior to the indictment) and petitioner
must have continued as a member of the conspiracy past that date. The
court held that both requirements were met: the conspiracy to conduct
the affairs of the RICO enterprise (the Commission itself) continued
past November 19, 1980, as other members of the conspiracy committed
racketeering acts to further the enterprise past that date; and
petitioner continued as a member of the conspiracy well into the
1980s. Id. at 59a-61a. /4/
ARGUMENT
1. Petitioner seeks review (Pet. 27-40) of the court of appeals'
holding that the murders of Galante, Turano, and Coppola at Joe &
Mary's restaurant established a pattern of racketeering activity
sufficient to support his RICO conspiracy conviction. As a result of
this Court's recent decision in H.J. Inc. v. Northwestern Bell Tel.
Co., No. 87-1252 (June 26, 1989), however, there is no longer a
conflict among the circuits on the meaning of "pattern of racketeering
activity." Moreover, the court of appeals in this case applied the
same standards that this Court adopted in H.J. Inc. Petitioner's
argument for review, therefore, reduces to his disagreement with the
court of appeals' application of the H.J. Inc. standards to the facts
of this case. But that claim is factbound, and the court of appeals'
decision is correct.
This Court held in H.J. Inc. that, to form a pattern, the predicate
acts of racketeering in a RICO case must be "related" and must "amount
to or pose a threat of continued criminal activity." Slip op. 8.
Criminal acts are related if they have the "same or similar purposes,
results, participants, victims, or methods of commission." Id. at 9
(internal quotation marks omitted). Continuity or the threat of
continuity is present if the predicate acts "project() into the future
with a threat of repetition." Id. at 10. In particular, "the threat
of continuity may be established by showing that the predicate acts or
offenses are part of an ongoing entity's regular way of doing
business," as where "the predicates can be attributed to a defendant
operating as part of a long-term association that exists for criminal
purposes." Id. at 11.
For the reasons stated by the court of appeals (Pet. App. 36a-37a),
the H.J. Inc. standards are met here. The three murders were
obviously related: each had the purpose and result of realigning the
Bonanno family leadership; the participants were the same; the
victims were all associated with Bonanno family boss Galante; and
each victim was shot at close range. The three murders also satisfied
the requirement of continuity. Although they occurred almost
simultaneously, that fact -- which was not a necessary element of
petitioner's and the Commission's scheme to kill all three victims --
does not diminish the patent threat of continuity inherent in the
acts. The murders were attributable to an ongoing criminal entity,
the Commission, and they were carried out as part of the regular way
in which the Commission did business. Indeed, the executions of
Galante, Turano, and Coppola were planned and completed precisely to
improve the ability of the Commission to carry on the criminal
business of La Cosa Nostra, a business that petitioner, as a soldier
and capo in the Bonanno organized crime family, swore he would carry
out. Ibid. Accordingly, the three murders constituted a pattern of
racketeering activity.
2. Petitioner also contends (Pet. 40-51) that his RICO conspiracy
conviction was barred by the statute of limitations because the three
murders were committed more than five years before the return of the
indictment in 1985. That contention is without merit. /5/
The statute of limitations for an offense does not begin to run
until the offense is complete. See Toussie v. United States, 397 U.S.
112, 115 (1970). A RICO conspiracy, like any other conspiracy,
continues until its purposes have been fulfilled or it is abandoned.
Hence, the limitations period for a particular conspirator does not
begin to run until the criminal conspiracy itself can be shown to have
stopped or that conspirator withdraws from the conspiracy. Hyde v.
United States, 225 U.S. 347, 369-370 (1912); United States v. Kissel,
218 U.S. 601, 607-610 (1910); see Grunewald v. United States, 353
U.S. 391, 397 (1957).
Petitioner does not dispute that the conspiracy in this case
continued beyond 1980. Indeed, most of the racketeering acts carried
out in furtherance of the conspiracy were committed in the 1980s. See
Gov't C.A. Br. 18-35. And although petitioner did not personally
commit those additional predicate offenses, the evidence at trial
showed that the Commission approved his promotion to capo in the
Bonanno family in 1981 and that he continued to associate with the
Commission at least until 1984. As the court of appeals concluded
(Pet. App. 60a-61a), therefore, petitioner was still a member of a
continuing conspiracy less than five years before the indictment was
returned. Accordingly, the indictment and conviction were not barred
by the statute of limitations. See United States v. Torres Lopez, 851
F.2d 520, 524-525 (1st Cir. 1988), cert. denied, 109 S. Ct. 1144
(1989); United States v. Persico, 832 F.2d at 713; United States v.
Coia, 719 F.2d 1120, 1124 (11th Cir. 1983), cert. denied, 466 U.S. 973
(1984).
Petitioner suggests (Pet. 44) that the court of appeals' ruling is
inconsistent with the statement in Bridges v. United States, 346 U.S.
209, 223 (1953), that a "charge of conspiracy to commit a certain
substantive offense is not entitled to a longer statute of limitations
than the charge of committing the offense itself." Id. at 223. That
suggestion is incorrect. The Court in Bridges had held that a special
provision suspending the running of the statute of limitations applied
only to fraud offenses. The government argued that that provision
applied to the charge against Bridges of conspiring to defraud the
United States. The Court rejected the argument, concluding that the
conspiracy charge did not actually allege fraud but instead merely
alleged conspiracy to commit certain other, nonfraud offenses that
were themselves outside the scope of the suspension provision. Hence,
the statement from Bridges relied on by petitioner, read in context,
means nothing more than that a "charge of conspiracy to commit a
certain substantive offense" is not entitled to the limitations
suspension if "the charge of committing the offense itself" is not
entitled to the suspension. Nothing in Bridges suggests that where,
as here, both a conspiracy and a substantive charge are subject to the
same limitations provision, the conspiracy and substantive offenses
are necessarily completed simultaneously. Indeed, any such suggestion
would be contrary to the longstanding principles noted above governing
the completion of conspiracies.
Finally, petitioner suggests (Pet. 48-51) that public policy is
offended if the statute of limitations for conspiracy does not begin
to run until the purposes of the conspiracy have been accomplished or
abandoned. That suggestion is both irrelevant and wrong. Conspiracy
and substantive offenses traditionally have been treated differently.
See Iannelli v. United States, 420 U.S. 770, 777-779 (1975)
(conspiracy poses distinct dangers and can be punished more harshly
than the substantive offense). And in this case in particular,
petitioner's policy argument has no force, because no statute of
limitations would have applied to the murders committed by petitioner
even if they had occurred in 1939. See N.Y. Crim. Proc. Law Section
30.10 (McKinney 1981); N.Y. Code Crim. Proc. Section 141 (1881).
Accordingly, petitioner cannot claim the right to "take advantage of
the policy of repose" (Pet. 49) that generally underlies statutes of
limitations.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
PATTY MERKAMP STEMLER
Attorney
JULY 1989
/1/ Six of petitioner's seven co-defendants were either
full-fledged members of the Commission (as bosses of the five
families) or high-ranking officials who were delegated to sit with the
Commission as the representative of or an aide to a particular boss.
The seventh co-defendant was a soldier in the Colombo family. Pet.
App. 47a.
/2/ The murders of Galante, Turano, and Coppola were charged as
three acts of racketeering activity. The indictment also enumerated
numerous other racketeering acts, including extortion and labor
bribery in the concrete construction industry in New York City, the
murders of three other La Cosa Nostra members, a 1981 conspiracy to
murder petitioner, and loansharking. Petitioner was not alleged to
have participated in any of these other racketeering predicate acts.
Pet. App. 8a, 47a-49a.
/3/ The court's ruling was unanimous. Judge Oakes wrote a
concurring opinion to emphasize that, although this is "the
quintessential racketeering case," facts external to the three murders
"were essential to prove relatedness and the threat of continuity."
Pet. App. 37a. Judge Mahoney also wrote a concurring opinion to note
his view that relatedness and continuity are attributes of a RICO
enterprise as well as of the required pattern of racketeering
activity. Id. at 40a-41a.
/4/ The panel reversed petitioner's substantive RICO conviction,
holding that it was barred by the statute of limitations because
petitioner did not commit a predicate act within five years of the
indictment. Pet. App. 59a-61a.
Judge Bright would have reversed petitioner's RICO conspiracy
conviction as well, because he thought that there was insufficient
evidence to tie the three murders to the Commission. Pet. App. 82a,
86a-87a. In addition, Judge Bright explained that, although he
concurred in the panel's rejection of petitioner's
statute-of-limitations challenge to his RICO conspiracy conviction, he
did so only because he was bound by the Second Circuit's decision in
Persico, which, in his view, is incorrect. Pet. App. 83a, 88a-90a.
/5/ Petitioner does not allege that there is an intercircuit
conflict on the statute of limitations question. He does assert (Pet.
46-48) that the courts of appeals have taken differing views on the
question whether, to be guilty of RICO conspiracy, each conspirator
must agree that he will personally commit at least two predicate acts.
That question, however, is not and could not be presented in this
petition. Petitioner agreed that he would personally commit, and he
personally committed, at least two predicate acts. Moreover, to the
extent that the Second Circuit has taken a different position on the
question from that of other circuits, the Second Circuit's apparent
position is the most favorable towards defendants. In any event, this
Court has repeatedly denied certiorari on the same issue. Scotto v.
United States, 109 S. Ct. 1340 (1989); Finestone v. United States,
108 S. Ct. 338 (1987); Stewart v. United States, 480 U.S. 919 (1987);
Neapolitan v. United States, 479 U.S. 940 (1986); Messino v. United
States, 479 U.S. 939 (1986); Adams v. United States, 474 U.S. 971
(1985); Tillie v. United States, 469 U.S. 845 (1984); Carter v.
United States, 469 U.S. 819 (1984).