U.S. v. Licavoli

• Decision Date: 09 January 1984
• Docket Number: 82-3509,Nos. 82-3498,s. 82-3498
• Citation: 725 F.2d 1040
• Parties: 14 Fed. R. Evid. Serv. 1782 UNITED STATES of America, Plaintiff-Appellee, v. James T. LICAVOLI (82-3498), Anthony Liberatore (82-3509, 82-3606), John P. Calandra (82-3510), Pasquale Cisternino (82-3511), Ronald Carabbia (82-3512), Kenneth Ciarcia (82-3513), Defendants-Appellants. to 82-3513 and 82-3606.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1040

725 F.2d 1040

14 Fed. R. Evid. Serv. 1782

UNITED STATES of America, Plaintiff-Appellee, v. James T. LICAVOLI (82-3498), Anthony Liberatore (82-3509 82-3606), John P. Calandra (82-3510), Pasquale Cisternino (82-3511), Ronald Carabbia (82-3512), Kenneth Ciarcia (82-3513), Defendants-Appellants.

Nos. 82-3498, 82-3509 to 82-3513 and 82-3606.

United States Court of Appeals Sixth Circuit.

Argued Nov. 14, 1983.

Decided Jan. 9, 1984.

James R. Willis argued, Cleveland, Ohio, for James T. Licavoli.

Elmer A. Giuliani argued, Mark Devan, Cleveland, Ohio, for Anthony Liberatore.

Burt J. Fulton argued, Elaine Harmon, Cleveland, Ohio, for John P. Calandra.

Ralph D. Sperli, Cleveland, Ohio, for Pasquale Cisternino.

Leonard W. Yelsky argued, Angelo F. Lonardo, Cleveland, Ohio, for Ronald Carabbia.

Jonathan H. Soucek, Cleveland, Ohio, for Kenneth Ciarcia.

John P. Sopko, Strike Force Atty., Cleveland, Ohio, William C. Bryson argued, Washington, D.C., for the U.S.

Before MERRITT and KENNEDY, Circuit Judges, and PRATT, District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

The six defendant-appellants were convicted of conspiring to participate in the affairs of an enterprise through a pattern of racketeering activities in violation of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. Sec. 1962(c) and (d) ¹ following a jury trial, and now appeal those convictions. Defendant Liberatore also appeals a denial of his motion for a new trial on a bribery conviction. All seven appeals have been consolidated. We affirm the judgments of conviction of all defendants.

In order to sustain a prosecution under RICO the government must establish that defendants engaged in a "pattern of racketeering activity," defined as at least two acts of racketeering activity. 18 U.S.C. Sec. 1961(5). "Racketeering activity" is defined in 18 U.S.C. Sec. 1961(1). The facts elicited by the prosecution at trial to prove the defendants' pattern of racketeering activity are lengthy and complex. Briefly, the government asserts (and we agree) that the evidence, viewed in the light most favorable to it, established the following.

I. Facts

Defendant Licavoli is a leader of organized crime in Cleveland. Liberatore is his second-in-command, and Calandra also holds a position of confidence and responsibility within the organization. Carabbia and Cisternino act for the organization, carrying out the orders of the top men. Ciarcia manages a car dealership and supplies vehicles for the organization's criminal activities and also acts on behalf of the organization in other ways.

In the spring of 1976 Licavoli decided that he needed to have one Danny Greene killed. Greene was the leader of a rival criminal organization which had developed a monopoly on criminal activity in West Cleveland. Licavoli had others in his organization contact Raymond Ferritto regarding his wish to have Greene killed. ² Ferritto testified that he met at various times with each of the defendants (except Liberatore), sometimes separately, sometimes in groups, to plan Greene's murder. Ferritto stalked Greene for some months without success, sometimes assisted by Cisternino. After Ferritto had been on the job for some time he asked Licavoli for money to cover his expenses, and he was eventually given $5,000 by Carabbia. Licavoli also told Ferritto that he would get a percentage of money derived from gambling in the Warren and Youngstown areas when the murder was accomplished.

Ferritto and Cisternino attempted to bomb Greene's apartment building in order to kill him, but never carried through because of the regular presence of older people in the area. On another occasion they drove to a party attended by Greene intending to kill him. They located Greene's car but found that it was guarded by members of Greene's criminal organization seated in an adjacent car.

Meanwhile Liberatore arranged with two other men, Aratari ³ and Guiles, to kill others in Greene's criminal organization, and ultimately to help kill Greene as well. Aratari and Guiles were at times assisted in their efforts by defendants Carabbia, Calandra, Cisternino and Ciarcia. Ciarcia and another man provided Aratari and Guiles with a car and weapons.

Licavoli had Greene's phone tapped in an effort to obtain reliable information regarding Greene's daily activities. Carabbia and Cisternino gave Ferritto the resulting tapes. One tape revealed that Greene was to go to a dentist's appointment at 2:30 p.m. on Thursday, October 6, 1977. Defendants Licavoli, Cisternino and Carabbia played this tape for Ferritto on Monday, October 3.

On Thursday, the day of Greene's dentist appointment, Cisternino and Ferritto built a bomb in an apartment maintained by Cisternino. Ferritto drove to the vicinity of the dentist's office with the bomb in his car, a Plymouth. Carabbia drove a second car to the office, a Nova. This car had a special box mounted on the side in which the bomb was to be placed. Cisternino remained behind at the apartment to listen to a police scanner for calls. A few minutes after Ferritto and Carabbia arrived at the dentist's, Aratari and Guiles arrived in another car, supplied by Ciarcia as the car to be used in "the Danny Greene case." Guiles was armed with a high powered rifle. The plan was for Guiles to shoot Greene if he had the opportunity. The bomb was to be used as a backup method.

Greene arrived for his appointment, parked his car and entered the office. Guiles apparently had no opportunity to shoot. A few minutes later a parking space opened next to Greene's car. Ferritto placed the bomb in the box on the side of the Nova, parked the Nova next to Greene's car, and activated the bomb. Then he got into the driver's seat of the Plymouth, which was parked down the block. When Greene emerged from the office Ferritto began to drive away, with Carabbia in the back seat. Carabbia then detonated the bomb with a remote control device and Danny Greene was killed.

All six defendants in the present case were tried for Danny Greene's murder in state court. Cisternino, Carabbia and Ciarcia were convicted of Greene's murder.

The RICO prosecution now on appeal also relied on a separate set of events to establish a predicate criminal act. Ms. Geraldine Rabinowitz ⁴ worked as a file clerk in the Cleveland office of the FBI, while her then-fiance Jeffrey Rabinowitz worked at the car dealership that Ciarcia managed. In the spring of 1977 Ciarcia asked Ms. Rabinowitz to obtain confidential information from the FBI regarding investigations of himself, Liberatore, and Licavoli. Ms. Rabinowitz complied, after some hesitation, and continued to steal confidential information for Ciarcia from time to time throughout the summer of 1977. Ciarcia assured Ms. Rabinowitz that she would in return be "covered" for a downpayment on a new home that she and her fiance planned to buy. On October 12, 1977 the Rabinowitzes met with Liberatore and Ciarcia, and the Rabinowitzes asked for $15,000 for a down payment on the home. Although Liberatore was at first unwilling to comply with this request, the next day he delivered a paper bag to Ms. Rabinowitz containing $15,000 in cash. Counsel for Liberatore characterized this payment as a "loan", but no interest was set, no repayment schedule made, and no collateral specified. The stolen FBI documents were later found at Ciarcia's car dealership. All six defendants were charged with two counts of bribery and one count of conspiracy to commit bribery and were tried in federal court. Ciarcia pleaded guilty to all three counts, and Liberatore was convicted of the conspiracy count and one substantive count.

All six defendants were tried together in federal court for the RICO violation. The jury found all six guilty of having violated RICO. Defendants now raise a large number of issues on appeal.

II. Conspiracy to Murder May Be a Predicate Act for a RICO Conviction

The District Court instructed the jury that there were three possible acts which the jury could find to serve as predicate acts of racketeering for the RICO charge. These were: 1) conspiracy to murder Danny Greene; 2) the murder of Danny Greene; and 3) bribery. The court instructed that the bribery act applied only to defendants Liberatore and Ciarcia. The jury therefore had to find that the other four defendants both conspired to murder, and murdered Danny Greene in order to convict them of the RICO violation. These four defendants (Licavoli, Calandra, Carabbia, Cisternino) now argue that conspiracy to commit murder cannot serve as a predicate act for a RICO conviction, and that their RICO convictions therefore cannot stand.

Under 18 U.S.C. Sec. 1961(1)(A) racketeering activity includes "any act or threat involving murder...." Conspiracy to murder on its face fits within this definition of racketeering activity. Conspiracy is "an act ... involving murder." However the original versions of the bill that ultimately became RICO specifically included conspiracy as a predicate act under section 1961, while the final bill did not. Defendants argue that Congress' failure specifically to enumerate conspiracy in the final version of the bill demonstrates a legislative intent not to allow conspiracy as a predicate act.

The Second Circuit rejected this argument with respect to conspiracies to commit acts listed in the definition of racketeering activity under section 1961(1)(D) in United States v. Weisman, 624 F.2d 1118 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980). See also United States v. Brooklier, 685 F.2d 1208, 1216 (9th Cir.1982) (conspiracy to extort may be a predicate act), cert. denied, --- U.S. ----, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983); United States v. Phillips, 664 F.2d 971, 1015 (5th Cir.1981) (conspiracy to import marijuana may be a predicate act), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

Under 18 U.S.C. Sec. 1961(1)(D), racketeering...