U.S. v. Zemek
| Decision Date | 07 January 1980 |
| Docket Number | 79-1549,Nos. 79-1536,79-1537,s. 79-1536 |
| Citation | 634 F.2d 1159 |
| Parties | 7 Fed. R. Evid. Serv. 216 UNITED STATES of America, Plaintiff-Appellee, v. Lamont Arnold ZEMEK, Richard Francis Caliguri, John Joseph Carbone, Frank Julius Mazzuca, George V. Janovich, Joseph M. Carbone, and Ronald John Williams, Defendants-Appellants. to 79-1552, 79-1567 and 80-1143. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David E. Wilson, Asst. U. S. Atty., Seattle, Wash., Gloria J. Shanor, Sp. Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Kenneth E. Kanev, Seattle, Wash., for Caliguri.
Robert Bryan, Lanning & Bryan, Seattle, Wash., for Mazzuca.
Monte E. Hester, Tacoma, Wash., for Janovich.
Graham Hughes, Gerald L. Shargel, New York City, for Carbone.
James S. Kempton, Seattle, Wash., for Williams.
Gary G. Weber, Puyallup, Wash., for Zemek.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and SNEED, Circuit Judges, and ENRIGHT, District Judge. *
Appellants attack the sufficiency of the evidence to support their convictions for a racketeering conspiracy and numerous substantive offenses connected therewith. They also assign error to designated instructions and evidentiary rulings. We affirm.
Count 1 of the seventeen count indictment charged fifteen confederates with conspiring over a seven-year period (1971 to 1978) to conduct the affairs of an "enterprise", the tavern business of Pierce County, Washington, through a pattern of racketeering. 18 U.S.C. § 1962(d).
The alleged racketeering activities included acts and threats of murder, arson and bribery (in violation of state law) and gambling, mail fraud, extortion and obstructing The seven appellants include the owners and operators of several taverns in Pierce County (John Carbone and his son, Joseph; Williams; and Mazzuca); and alleged "strong-arm" (Caliguri); a "middleman" (Zemek); and the "protector" (former Pierce County Sheriff Janovich). The indictment characterized John Carbone as the "leader" of the organization with Ron Williams as his "chief lieutenant."
communication to criminal investigators (in violation of federal law). The remaining counts charged several defendants with these substantive federal crimes.
Because appellants challenge the sufficiency of the evidence as to several counts, the evidence adduced at trial as to each count will be discussed separately. We view the evidence, as we must, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Basey, 613 F.2d 198, 201 (9th Cir. 1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 274 (1980).
The mass arrests of defendants in November 1978 marked the culmination of a federal undercover operation begun in the fall of 1977. The investigation was prompted by a rash of arsons at Pierce County taverns and topless dancing establishments. Between 1972 and 1977 three taverns in which Williams, Mazzuca, John Carbone, and Joe Carbone had ownership or management interests were destroyed by fire. 1 All were insured. There was evidence that, prior to the fires, the establishments had been experiencing poor business. Thereafter, mortgages and debts were paid, the premises were remodeled or new establishments were opened nearby.
Between 1976 and 1978 seven suspected arsons also occurred at the establishments of competitors in the tavern, disco or topless dancing business. 2 Because local law enforcement officers were unsuccessful in apprehending the perpetrators, the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) began a joint investigation of the tavern fires with the sheriff's office in the fall of 1977.
By April 1978, evidence indicated Sheriff Janovich was providing information to a principal target (Williams). The ATF feigned abandonment of the investigation and dissolved the "partnership." Thereafter, the FBI and ATF conducted an undercover operation.
After his arrest in April 1978, defendant Michael Valentine agreed to cooperate with the ATF. Thereafter, the government recorded conversations between Williams and Valentine in which Williams admitted responsibility for arranging the attempted assassination of a state liquor control board supervisor responsible for policing Pierce County taverns for alcohol and topless dancing violations. In November 1977, the supervisor had been shot four times and seriously wounded.
At trial Valentine testified that he hired defendants Bentley and Johnson to execute the murder contract solicited by Williams. The government introduced evidence of motive. Three taverns in which Williams and the Carbones had management or ownership interests received notices of topless dancing violations, entailing temporary closures in the months preceding the murder attempt. Williams, John Carbone, and Joe Carbone frequently expressed vitriolic dissatisfaction with the inspector's stringent enforcement activities.
Valentine was also instrumental in introducing undercover agents as Chicago "mobsters" whereby they were able to penetrate gambling activities at Mr. Lucky's and Stan & Ollies, taverns and cardrooms owned and managed by Williams and Mazzuca. Gambling Posing as a potential buyer of Mr. Lucky's tavern and the related gambling activities, an agent was informed that a price could be negotiated to include the law enforcement protection arrangement with the sheriff's office. Mazzuca and Williams participated actively in these negotiations. Williams arranged an initial meeting between the "buyer" and Sheriff Janovich.
included blackjack and pot limit poker games illegal under state law. 3
In 1976 the Internal Revenue Service (IRS) had initiated a criminal investigation of John Carbone and his activities. Carbone accused Jerome Weinstein, a former business associate, of informing to the IRS. Shortly thereafter, Weinstein's home suffered a series of firebombings and arsons. He was assaulted and seriously injured.
Concurrent with this undercover operation, agents consensually recorded conversations in an attempted extortion scheme involving John Carbone and Williams. John Carbone met with Weinstein soliciting $10,000 to be paid to Williams for protection against harassment. Weinstein agreed to cooperate with the FBI and record conversations with Carbone.
In the fall of 1978 the FBI was also able to infiltrate a nascent plot to bomb a competitor's tavern. In the process of concluding the "sale" of Mr. Lucky's tavern to an undercover agent, Williams sought the "buyer's" help in locating a bomber to blow up the Night Moves tavern, a topless dancing establishment owned by Ron Chase.
The government introduced evidence that Night Moves provided the primary competition for Joseph Carbone's Flitter In. Night Moves had previously been the object of two arsons. In addition, in August 1978 Chase's home had been entered by an armed man subsequently identified as Caliguri who threatened the occupants with bodily injury unless Chase ceased operations.
The FBI arranged for an undercover agent to pose as the bomber. Williams set up the initial telephone contact, giving the number for Vista Auto Sales. John Carbone, Joe Carbone and Williams were observed listening for varying periods to this phone conversation. Caliguri met several times with the bomber to discuss details.
On November 28, 1978, at the time the final telephone contact was expected at Vista Autos, agents arrested John and Joe Carbone and Williams on the premises. The remaining defendants were apprehended the same day.
Six of the fifteen defendants pleaded guilty and testified at trial. Taped conversations between and among Valentine, Weinstein, and undercover agents, on the one hand, and John Carbone, Williams, Mazzuca, Zemek, Caliguri and Janovich, on the other, formed an important part of the government's case. 4
After a three month trial, 5 the jury acquitted defendant Levage of all charges and returned guilty verdicts against the seven remaining defendants as to all counts in which they were named. The trial court imposed generally concurrent sentences and cumulative fines. 6
Title IX of the Organized Crime Control Act of 1970 added Chapter 96 entitled, "Racketeer Influenced and Corrupt Organizations" (RICO) to Title 18 of the United States Code. RICO prohibits investment in, control, or operation of an "enterprise" through a pattern of racketeering activity. See 18 U.S.C. §§ 1961-1968. RICO defines "enterprise" somewhat ambiguously to include "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). The definition of "racketeering activity" incorporates eight state crimes and twenty-four specified federal crimes. 18 U.S.C. § 1961(1). 7
Finally, RICO requires a "pattern" of racketeering activity: at least two acts of racketeering committed within a period of ten years. 18 U.S.C. § 1961(5). The alleged pattern herein consisted of 29 predicate offenses involving, inter alia, multiple acts of arson, extortion and gambling.
Section 1962, the substantive portion of RICO, employs the foregoing definitions to create three offenses. See 18 U.S.C. § 1962(a)-(c). Pertinent to this appeal is subsection 1962(c) which prohibits any person employed by or associated with an enterprise from conducting its affairs through racketeering activity. 8 Count I charged each appellant with a conspiracy to violate this subsection under 18 U.S.C. § 1962(d). The indictment alleged 107 overt acts in furtherance of this conspiracy.
Appellants raise three objections related to count one: (1) permitting application of RICO to defendants' activities; (2) failing to charge multiple...
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