U.S. v. Manzella

• Decision Date: 13 February 1986
• Docket Number: No. 85-3050,85-3050
• Citation: 782 F.2d 533
• Parties: 20 Fed. R. Evid. Serv. 196 UNITED STATES of America, Appellee, v. Joseph MANZELLA, Jr., Hubert T. Crabtree, Harold Blanchard, Joseph Robert Provenzano, Herbert Thibodaux, Joseph Jimenez, Jr., and Dr. Salvatore Canale, Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 533

782 F.2d 533

20 Fed. R. Evid. Serv. 196

UNITED STATES of America, Appellee, v. Joseph MANZELLA, Jr., Hubert T. Crabtree, Harold Blanchard, Joseph Robert Provenzano, Herbert Thibodaux, Joseph Jimenez, Jr., and Dr. Salvatore

Canale, Appellants.

No. 85-3050.

United States Court of Appeals, Fifth Circuit.

Feb. 13, 1986.

Daniel A. McGovern (court appointed), New Orleans, La., for Manzella.

G. Patrick Hand, Jr., New Orleans, La., for Thiboduax.

Wm. J. O'Hara, III, John-Michael Lawrence, New Orleans, La., for Crabtree.

Provino Mosca, Patrick Fanning, New Orleans, La., for Provenzano.

Edward J. Castaing, Jr. (court appointed), New Orleans, La., for Blanchard.

Virginia L. Schlueter, Appellate Federal Public Defender (court appointed), New Orleans, La., for Jimenez.

Ralph Capitelli, New Orleans, La., for Dr. Canale.

Louis M. Fischer, Washington, D.C., Virginia Bitzer, New Orleans, La., for appellee U.S.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GEE, and JOHNSON, Circuit Judges and SCHWARTZ, ^* District Judge.

GEE, Circuit Judge:

Today we consider the appeals of seven men convicted of committing various crimes as part of an ongoing criminal operation in Louisiana. For their efforts, most were found guilty of violating, and conspiring to violate, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-68. Two of the appellants were convicted under 18 U.S.C. Sec. 1341 for using the United States mail in furtherance of schemes to defraud their insurance companies. On appeal, each raises myriad grounds for reversal. After examining all of their assertions, however, we find no cause to reverse their convictions and therefore affirm the trial court's judgment.

Appellant Joseph Provenzano was the kingpin of a Louisiana crime organization involved in, among other transgressions, arson, extortion, and mail fraud. Several men worked for him, including Johnny Toal, Rondell Hulbert, John Rietzke, and appellant Harold Blanchard. ¹ The organization also had many patrons of its services. Appellants Herbert Thibodaux and Hubert Crabtree twice asked Provenzano to burn down a competitor's lounge, requests resulting in two separate arsons. Appellant Salvatore Canale, who apparently suffered many marital difficulties, resolved to end his problems by destroying the property of his estranged wives. Two discussions with Provenzano resulted in the destruction of an automobile that he believed was owned by his second wife (although it actually belonged to a friend of hers) and a conspiracy to burn down a New Orleans restaurant owned by his third wife. Appellant Joseph Manzella had Provenzano's men burn down a building he owned so that he could collect the insurance proceeds. Appellant Joseph Jimenez had the organization "steal" his car so he too could defraud his insurance company.

Unfortunately for the appellants, word of their enterprise reached the federal authorities. To build a case against the organization and its customers, the government concentrated on obtaining the cooperation of Provenzano's henchmen. This tactic proved enormously successful; every subordinate except Blanchard became a government informant who both told the government everything he knew and helped the government obtain taped conversations with the appellants. The government used this evidence to obtain the convictions of all seven appellants.

Several of the appellants were indicted for both participating in a criminal enterprise and conspiring to violate RICO. Count one of the indictment alleged a conspiracy to violate Sec. 1962(c), which is itself a violation of Sec. 1962(d). Count two alleged actual violations of Sec. 1962(c). These two provisions are as follows:

(c) It shall be 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 or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.

The necessary definitions are in 18 U.S.C. Sec. 1961. A "pattern of racketeering activity" is defined in Sec. 1961(5) as requiring at least two acts of racketeering activity within a ten year span. "Racketeering activity" means, among other things, "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under state law and punishable by imprisonment for more than one year." Sec. 1961(1)(A). Finally, "enterprise" is given a liberal meaning in Sec. 1961(4) as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."

Other counts of the indictment charged Manzella, Jimenez, Provenzano, and Blanchard with violating 18 U.S.C. Sec. 1341 by using the mail to defraud insurance companies. The appellants were found guilty of most, but not all, counts, 602 F.Supp. 230. We now consider their arguments on appeal.

I. THE RICO ENTERPRISE

Several of appellants' arguments require us to expound the law of the RICO enterprise. Although the federal courts have often dealt with RICO over the past few years, the law is still new enough to engender uncertainty. Part of the problem stems from the difficulty in distinguishing the criminal enterprise from the criminal conspiracy. The tenets of conspiracy law are familiar to all; such rules constitute a considerable portion of this country's criminal law. They must not become blinders, however, that affect our interpretation of RICO. The criminal enterprise is a creature different from the conventional conspiracy; its unique nature arises from specific federal legislation independent of the common law of conspiracy. To help flesh out the nature of the criminal enterprise, therefore, we devote a considerable part of our review to appellants' interpretations of RICO.

Appellant Canale was indicted under the RICO counts because of two meetings he had with Joseph Provenzano. In December 1979, Canale asked Provenzano to set fire to the car of his second wife, Isabelle. In February 1981, Canale again requested the services of Provenzano organization, this time to torch the restaurant owned by his estranged third wife, Kristina. He never tried to commit the arsons himself, instead conspiring with Provenzano on two occasions. These meetings nevertheless sufficed to violate Sec. 1962(c) and (d).

The government's theory at trial was that Canale engaged in a pattern of racketeering in the guise of his two meetings with Provenzano. Although Canale now asserts that these conspiracies cannot be the predicate acts required to constitute a pattern of racketeering, we hold otherwise. In United States v. Weisman, 624 F.2d 1118, 1123-24 (2nd Cir.1980), cert. denied 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980), the court held that a conspiracy to engage in Sec. 1961(1)(D) racketeering activity could be a predicate act for a Sec. 1962(c) violation. Influenced by Weisman's reasoning, we have recognized that the language of Sec. 1961(1)(A) is similar to that of Sec. 1961(1)(D); therefore, "[i]f conspiracy to commit a subsection D offense can serve as a predicate act for a RICO charge, then conspiracy to commit a subsection A offense should also be able to serve as a predicate act." United States v. Welch, 656 F.2d 1039, 1063 n. 32 (5th Cir.1981), cert. denied 456 U.S. 915, 102 S.Ct. 1768, 72 L.Ed.2d 173 (1982). The wording of Sec. 1961(1)(A) supports this view, as it defines "racketeering activity" as "any act or threat ... involving arson...." This language allows for more than arson itself as a predicate act and seems broad enough to include conspiracy to commit arson. ² We therefore reaffirm our view in Welch by holding that a conspiracy to commit an offense listed in Sec. 1961(1)(A) may serve as a predicate act required to establish a violation of Sec. 1962(c).

Canale's second argument is that he cannot be found guilty of engaging in racketeering since he was merely a consumer of Provenzano's services. Although not a member of Provenzano's organization, Canale did associate with it on two occasions. His associations furthermore incited Provenzano's organization to commit further wrongs. Mere "customers" can indeed engage in a pattern of racketeering activity in furtherance of the affairs of the enterprise. As we held earlier, Canale committed the two predicate acts needed to constitute a racketeering pattern. Once this is established, his status as a customer becomes irrelevant, because Congress intended the prosecution of anyone whose actions fall foul of Sec. 1962(c). See United States v. Martino, 648 F.2d 367, 383 (5th Cir.1981), cert. denied 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982).

Because he was only an occasional customer, however, Canale was not personally involved in the crimes of the Provenzano organization perpetrated at the behest of other customers. He asserts as a ground for reversal the variance between the indictment, which alleged one conspiracy in the form of an overarching enterprise, and the trial evidence showing a group of unrelated conspiracies. This challenge to the enterprise concept cannot be taken lightly; at issue is "the right not to be tried en masse for the conglomeration of distinct and separate offenses committed by others." Kotteakos v. United States, 328 U.S. 750, 775, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). In United States v. Elliott, 571 F.2d 880 (5th Cir.1978), we nevertheless held that a group of defendants could together be convicted for violating RICO even though multiple conspiracies existed. Under the enterprise concept, agreement among all...