709 F.2d 214 (3rd Cir. 1983), 82-1399, United States v. Riccobene

Docket Nº:Mario RICCOBENE, Appellant in No. 82-1399
Citation:709 F.2d 214
Party Name:UNITED STATES of America v.
Case Date:May 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 214

709 F.2d 214 (3rd Cir. 1983)

UNITED STATES of America

v.

Mario RICCOBENE, Appellant in No. 82-1399

v.

Joseph CIANCAGLINI, Appellant in No. 82-1410

v.

Charles WARRINGTON, Appellant in No. 82-1411

v.

Pasquale SPIRITO, Appellant in No. 82-1412

v.

Joseph BONGIOVANNI, Appellant in No. 82-1413

v.

Harry RICCOBENE, Appellant in No. 82-1414.

Nos. 82-1399, 82-1410 to 82-1414.

United States Court of Appeals, Third Circuit

May 20, 1983

Argued March 16, 1983.

As Amended June 13, 1983.

Rehearing Denied June 16, 1983.

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[Copyrighted Material Omitted]

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Peter F. Vaira, Jr., U.S. Atty., E.D. Pa., Joel M. Friedman, Albert J. Wicks, Sp. Attys., Dept. of Justice, Philadelphia, Pa., William C. Bryson (argued), Dept. of Justice, Washington, D.C., for appellee.

Carmen C. Nasuti (argued), Nasuti & Miller, Philadelphia, Pa., for Mario Riccobene.

Robert F. Simone (argued), Philadelphia, Pa., for Jos. Ciancaglini.

Oscar N. Gaskins, Gaskins & McCaskill, Philadelphia, Pa., for Chas. Warrington.

Bonnie B. Leadbetter (argued), Philadelphia, Pa., for Pasquale Spirito.

Alan B. Epstein (argued), Jablon, Epstein & Wolf, Philadelphia, Pa., for Jos. Bongiovanni.

Mario J. D'Alfonso, Camden, N.J., for Harry Riccobene.

Before ADAMS and HUNTER, Circuit Judges and ACKERMAN, District Judge. [*]

OPINION

ADAMS, Circuit Judge.

The appellants in this case challenge their convictions under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. ("RICO"), and the federal gambling statute, 18 U.S.C. Sec. 1955. Their primary argument is that the evidence failed to show beyond a reasonable doubt either that they were engaged in the conduct of a single on-going enterprise, as required for the RICO count for which they were convicted, or that their activity constituted a single conspiracy. They also contend that the jury could not properly have found that each appellant committed the acts charged against him as predicate offenses of the RICO count. In addition, various appellants raise the following claims individually: that the evidence as to particular counts was insufficient; that the district court committed reversible trial errors; that certain confidential attorney-client communications were intercepted by the F.B.I. wiretaps; and that RICO violates both the fifth and eighth amendment rights of the appellants by permitting the imposition of unjustifiably harsh sentences. After considering all of the contentions raised by each defendant, we conclude that the evidence was sufficient in all respects and that no reversible errors were committed by the district court. Accordingly, the convictions will be affirmed.

I.

This RICO case involves a number of persons who were members of an alleged "crime family" in Philadelphia. The government asserts that during the period covered by the indictment, 1972 to 1978, there existed an on-going criminal enterprise, implicating each of the defendants, and that this enterprise engaged in activities that included illegal gambling, mail fraud, wire fraud, extortionate credit transactions

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and collection of unlawful debts. At trial, the bulk of the evidence consisted of tape recordings of conversations among the co-conspirators that were intercepted by government wiretaps at three locations: Frank's Cabana Steak House, the Tyrone DeNittis Talent Agency; and the C. Warren Check Cashing Company. The transcripts of these tapes fill eight volumes.

  1. The Participants in the Enterprise

    Angelo Bruno, a named co-conspirator, headed the enterprise; the "underboss" was co-defendant Philip Testa. Supervisors in the enterprise, who worked under Testa, included appellant Harry Riccobene, co-defendants Frank Narducci and Carl Ippolito, and co-conspirators Nicodemo Scarfo, John Simone and Frank Sindone. Appellant Joseph Ciancaglini was, to a lesser extent, part of the core group of the organization. He appears to have worked for Sindone, the most active of the supervisors, to oversee many of the gambling operations of the enterprise.

    The other appellants were not major figures in the overall operation of the organization. Mario Riccobene was a partner of his half-brother Harry in the loan-sharking and numbers businesses that they operated out of the DeNittis Talent Agency in South Philadelphia; Mario also appears to have served occasionally as Bruno's driver. Joseph Bongiovanni worked for the Riccobenes.

    Charles Warrington and Pasquale Spirito, the final two appellants, had virtually no direct contact with the Riccobenes and Bongiovanni. Warrington ran various gambling operations, both numbers and craps games, at which Spirito worked. 1 These operations were supervised by Ciancaglini, who also oversaw the Riccobenes' numbers game.

    By the time the trial took place, a number of the co-conspirators and defendants had been killed, including Bruno, Testa, Narducci, Sindone and Simone; Ippolito was declared incompetent to stand trial; and Scarfo is in federal custody on unrelated charges. 2

  2. The Activities

    The indictment charges that the "pattern of racketeering activity" in this case is demonstrated by eight predicate offenses committed by various appellants. Some of these activities implicate just one appellant, acting with other co-conspirators. There is no single predicate offense in which all the appellants participated together. 3

    1. Chestnut Hill Lincoln Mercury Dealership

    Three of the predicate offenses charged against appellant Ciancaglini arose from activities connected with the Chestnut Hill Lincoln Mercury car dealership. Harry Brown, the general manager of the dealership,

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    testified that since 1969 he had borrowed money from Frank Sindone at a rate of 2 1/2% interest per week. After a time, Brown, with the permission of Testa and Sindone, lent money to Russell Wilmerton at unlawfully high interest rates. When Wilmerton could not repay the loan, Brown, Ciancaglini and another man went to his house twice. Ciancaglini remained silent as the other men threatened Wilmerton. Ciancaglini later told Harry Riccobene that he had gone to Wilmerton's house to help collect the debt. The collection of the Wilmerton debt is the basis for the racketeering acts of extortionate credit and unlawful debt collection charged against Ciancaglini.

    Ciancaglini attended a meeting with Brown, Testa, Sindone and Brown's employer to discuss methods of generating cash so that Brown could repay some of his loans to Testa and Sindone. Brown proposed the staging of a robbery at the car dealership. Sindone and Testa agreed, and as part of the scheme, arranged that Ciancaglini be given a car free of charge. The records of the business were altered to show that Ciancaglini paid $3,000 in cash for the car on the day of the robbery, although he had in fact paid nothing. The dealership reported the robbery to the police and to its insurance carrier, claiming the $3,000 supposedly paid by Ciancaglini as part of the loss; the carrier paid the claim. When questioned by the police, Ciancaglini falsely stated that he had paid that amount of cash for the automobile, and that he knew nothing of the robbery. This scheme is the basis for the mail fraud claim against Ciancaglini as a predicate offense to the RICO conspiracy. 4

    2. The Numbers Operations

    In 1976, Ciancaglini, Sindone and Testa managed an illegal numbers operation which they discussed in several intercepted conversations. Ciancaglini also had conversations, which were recorded, with persons working for him concerning this operation. He discussed the accounts with Sindone and Testa and described his own role as collecting the money from the game. He referred to Sindone as his "boss." This operation formed the basis for one of the predicate offenses charged against Ciancaglini.

    Between September and November 1977, Harry and Mario Riccobene conducted a numbers operation. At trial, a government expert testified that, in his estimation, more than 35 persons ran numbers for the Riccobenes; one was Joseph Bongiovanni, who discussed the numbers operation with Harry Riccobene several times. Ciancaglini was overseeing this business and coordinating the numbers games for the enterprise. He apparently visited the Riccobenes at their offices every Wednesday, and after one such visit he was seen handling a large sum of cash to Angelo Bruno. According to the government's theory of the case, the Wednesday visits were for the purpose of collecting a share of the week's numbers profits. At one of these meetings, Ciancaglini and Harry Riccobene discussed the "cut numbers" problem and the need for a uniform policy. 5 Ciancaglini promised that he would discuss the matter with Sindone, who might then have to go to Bruno to have it resolved. This numbers operation was one of the predicate offenses charged against the Riccobenes, Ciancaglini and Bongiovanni. It was also the basis for the substantive crime of illegal gambling charged against these four in Count III of the indictment.

    There was evidence that Warrington conducted an illegal numbers operation between April and June 1978. Warrington apparently reported to Ciancaglini and Sindone, and the tapes indicate that on at least one occasion Warrington met with Ciancaglini to straighten out a problem with one

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    of the numbers runners and to "unload" a "two weeks ribbon." 6 This operation formed the basis of one predicate offense for Ciancaglini and Warrington.

    3. Riccobenes' Loan Business

    The wire-tap transcripts contain several conversations between Harry Riccobene and others concerning the loansharking business that Harry Riccobene conducted out of the DeNittis Talent Agency...

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