378 F.3d 71 (1st Cir. 2004), 02-2158, United States v. Cianci

Docket Nº:02-2158, 02-2159, 02-2165, 02-2166, 02-2288.
Citation:378 F.3d 71
Party Name:UNITED STATES of America, Appellee, v. Vincent A. CIANCI, Jr., Frank E. Corrente, and Richard E. Autiello, Defendants, Appellants.
Case Date:August 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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378 F.3d 71 (1st Cir. 2004)

UNITED STATES of America, Appellee,

v.

Vincent A. CIANCI, Jr., Frank E. Corrente, and Richard E. Autiello, Defendants, Appellants.

Nos. 02-2158, 02-2159, 02-2165, 02-2166, 02-2288.

United States Court of Appeals, First Circuit

August 10, 2004

Heard Oct. 9, 2003.

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John A. MacFadyen, for appellant Vincent A. Cianci, Jr.

Anthony M. Traini, for appellant Frank E. Corrente.

Richard C. Bicki with whom Cerilli & Bicki and Edward Gerstein were on brief for appellant Richard E. Autiello.

Donald C. Lockhart, Assistant United States Attorney with whom Margaret E. Curran, United States Attorney, Richard W. Rose and Terrence P. Donnelly, Assistant United States Attorneys were on brief, for appellee.

Before HOWARD, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

STAHL, Senior Circuit Judge.

Vincent A. Cianci was the Mayor of Providence, Rhode Island; Frank E. Corrente was the City's Director of Administration; Richard E. Autiello was a member of the Providence City Towing Association, a private organization. Between April 23 and June 24, 2002, the three were jointly tried on a superseding indictment that charged them and others with forty-six violations of federal statutes prohibiting public corruption. The district court entered judgments of acquittal on eight of the charges but submitted the rest to the jury.

On June 24, 2002, the jury returned a total of eight guilty verdicts but acquitted on the remaining thirty counts. All three defendants were convicted on a single count charging a conspiracy to violate the RICO (Racketeer Influenced and Corrupt Organizations) statute. See 18 U.S.C. § 1962(d). Corrente and Autiello were convicted on a count charging a federal bribery conspiracy. See 18 U.S.C. §§ 371 & 666(a)(1)(B). Corrente was convicted on a count charging a substantive RICO violation, see 18 U.S.C. § 1962(c), two counts charging Hobbs Act extortion conspiracies, see 18 U.S.C. § 1951(a), and two counts charging Hobbs Act attempted extortions, see id. Autiello was convicted on an additional count charging a second federal bribery conspiracy. See 18 U.S.C. §§ 371 & 666(a)(1)(B). The jury also answered "YES" to four of thirty-seven special interrogatories, which asked whether the government had "proven" the alleged predicate acts underlying the racketeering counts; all other special interrogatories were answered "NO" or not answered at all.

The district court subsequently granted a judgment of acquittal on one of the

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extortion conspiracy charges of which Corrente had been convicted; ordered the forfeiture of $250,000 in a campaign contribution fund controlled by Cianci and Corrente pursuant to RICO's forfeiture provisions, see 18 U.S.C. § 1963(a)(1); and sentenced the defendants to prison terms of sixty-four months (Cianci), sixty-three months (Corrente), and forty-six months (Autiello).

Cianci, Corrente, and Autiello appeal their convictions and sentences, and Cianci and the government cross appeals the district court's forfeiture ruling. We begin with challenges to defendants' RICO convictions.

I. The RICO Convictions (All Defendants)

A. Indictment

Count One of the indictment charged Cianci, Autiello, and Corrente with conspiracy to operate the affairs of an enterprise consisting of the defendants themselves, the City of Providence, "various officers, agencies and entities of Providence" including thirteen specified agencies, Jere Realty, and Friends of Cianci, and others "known or unknown to the Grand Jury." The purpose of the enterprise "included the following: a. Enriching Defendant Vincent A. Cianci ... Friends of Cianci through extortion, mail fraud, bribery, money laundering, and witness tampering, and b. Through the same means enriching, promoting and protecting the power and assets of the leaders and associates of the enterprise." In a pre-trial motion, defendants moved to dismiss the RICO allegations, asserting that the enterprise as charged was improper in that it was overly broad, vague, and legally impossible.1 The district court denied the motion. The issues raised by this motion were revisited on motions for judgment of acquittal and for a new trial. The court denied these motions as well.

Defendants argue that the enterprise charged in the indictment was purposefully obscure and did not provide adequate notice to defendants of the crimes for which they were charged and ultimately convicted. The argument is couched in two ways: that 18 U.S.C. § 1961(4) is unconstitutional as applied for failure to provide "fair warning" of the alleged criminal conduct and that the charged enterprise failed to provide adequate notice against which the defendants could defend themselves. The government counters that, under the RICO statute, enterprise is defined broadly and that defendants were sufficiently apprised of the nature and extent of the charges.

RICO makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity[.]" 18 U.S.C. § 1962(c). The statute also outlaws conspiracies to violate § 1962(c). See id. § 1962(d). As stated above, Corrente was convicted of a substantive violation of § 1962(c), and all three defendants were convicted of RICO conspiracy under § 1962(d).

A RICO "enterprise" "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). See United States v. DeCologero, 364 F.3d 12, 18 (1st Cir. 2004). It is important to stress that the Supreme

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Court has admonished that RICO and the term "enterprise" be construed expansively. See United States v. Turkette, 452 U.S. 576, 586-87, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497-98, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also United States v. London, 66 F.3d 1227, 1243-44 (1st Cir. 1995); United States v. Lee Stoller Enterprises, Inc., 652 F.2d 1313, 1318 (7th Cir. 1981). The term's flexibility is denoted by the use of the word "includes" rather than "means" or "is limited to"; it does not purport to be exhaustive. See United States v. Masters, 924 F.2d 1362, 1366 (7th Cir. 1991) (Posner, J.); United States v. Perholtz, 842 F.2d 343, 353 (D.C.Cir. 1988). Accordingly, "enterprise" has been interpreted inter alia to include (1) legal entities such as legitimate business partnerships and corporations, and (2) illegitimate associations-in-fact marked by an ongoing formal or informal organization of individual or legal-entity associates, see London, 66 F.3d at 1243-44 (associations-in-fact may include legal entities such as corporations), who or which function as a continuing organized crime unit "for a common purpose of engaging in a course of conduct." Turkette, 452 U.S. at 580-83, 101 S.Ct. 2524; see also United States v. Patrick, 248 F.3d 11, 19 (1st Cir. 2001), cert. denied, 535 U.S. 910, 122 S.Ct. 1215, 152 L.Ed.2d 152 (2002). The enterprise charged in this case is of the latter, associated-in-fact variety.

Here, the superseding indictment delineated the members of the enterprise, the roles of the defendants in the enterprise, the purposes and goals of the racket, and the ways in which the defendants used other members of the enterprise--specifically, municipal entities that they controlled as part of the conspiracy--to further those purposes and goals. It alleged that defendants conspired to violate and did in fact violate RICO through their involvement in an associated-in-fact enterprise devoted to enriching and empowering defendants and others through unlawful means. The enterprise was alleged to have been comprised of the individual defendants; the City of Providence "including, but not limited to" many of its departments, offices, and agencies; the campaign contribution fund controlled by Cianci and Corrente; and others known and unknown to the grand jury. The enterprise allegations, which we reproduce as redacted following the district court's entry of the eight judgments of acquittal prior to the jury charge, read as follows:

THE RACKETEERING ENTERPRISE

Defendants VINCENT A. CIANCI, JR., a/k/a "Buddy"; FRANK E. CORRENTE; RICHARD E. AUTIELLO; the City of Providence ("Providence"), including, but not limited to, the Office of Mayor, the Office of the Director of Administration, the Providence City Solicitor's Office, the Department of Planning and Development, the Providence Redevelopment Agency, the Tax Collector's Office, the Tax Assessor's Office, the Board of Tax Assessment Review, the Finance Department, the Department of Public Safety, the Providence School Department, the Department of Inspection and Standards, and the Building Board of Review; Friends of Cianci, the political organization of Defendant VINCENT A. CIANCI, JR., a/k/a "Buddy"; and others known and unknown to the Grand Jury, constituted an "enterprise" as defined by 18 U.S.C. § 1961(4), that is, a group of individuals and entities associated in fact. This enterprise, which operated in the District of Rhode Island and elsewhere, was engaged in, and its activities affected interstate commerce.

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PURPOSES OF THE ENTERPRISE

The purposes of the enterprise included the following:

a. Enriching Defendant VINCENT A. CIANCI, JR., a/k/a "Buddy" and Friends of Cianci...

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