U.S. v. Coonan, 898

• Decision Date: 11 February 1988
• Docket Number: D,No. 898,898
• Parties: UNITED STATES of America, v. James COONAN, a/k/a "Jimmy," Kevin Kelly, James McElroy, a/k/a "Jimmy Mack," William Bokum, Kenneth Shannon, John Halo, Edna Coonan, a/k/a "Julia Coonan," Richard Ritter, a/k/a "Muggsy," Thomas Collins, and Florence Collins, Defendants. In re UNITED STATES of America, Petitioner. ocket 88-3007.
• Court: U.S. Court of Appeals — Second Circuit

Page 886

839 F.2d 886

56 USLW 2488

UNITED STATES of America, v. James COONAN, a/k/a "Jimmy," Kevin Kelly, James McElroy a/k/a "Jimmy Mack," William Bokum, Kenneth Shannon, John Halo, Edna Coonan, a/k/a "Julia Coonan," Richard Ritter a/k/a "Muggsy," Thomas Collins, and Florence Collins, Defendants In re UNITED STATES of America, Petitioner.

No. 898, Docket 88-3007.

United States Court of Appeals Second Circuit.

Argued Feb. 5, 1988.

Decided Feb. 5, 1988.

Opinions Feb. 11, 1988.

Aaron R. Marcu, Asst. U.S. Atty., S.D.N.Y., New York City, (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City, Mary Lee Warren, David Brodsky, Asst. U.S. Attys., of counsel), for petitioner.

Vivian Shevitz, New York City (Gerald L. Shargel, Georgia J. Hinde, New York City, Frank A. Lopez, Sercarz, Schechter & Lopez, Brooklyn, N.Y., Fern H. Shwaber, Alfred M. Christiansen, Robert Blossner, Lawrence H. Schoenbach, Ronald L. Garnett, Wiggins, Holt & Garnett, New York City, of counsel), for defendants James Coonan, Edna Coonan, James McElroy, William Bokum, John Halo, Richard Ritter and Thomas Collins.

Henriette D. Hoffman, New York City (Colleen P. Cassidy, Federal Defender Services Unit, The Legal Aid Society, New York City, of counsel), for defendant Florence Collins.

Before TIMBERS, WINTER and ALTIMARI, Circuit Judges.

WINTER, Circuit Judge:

This petition for a writ of mandamus involves an ongoing criminal RICO trial before Judge Knapp and arises because of the government's insistence that the jury, before determining guilt as to individual predicate acts, be informed that two such acts are necessary to sustain a RICO conviction. We denied the petition shortly after oral argument on February 5, 1988; this opinion sets out our reasons.

BACKGROUND

The fifteen-count indictment, Indictment S 87 Cr. 249 (WK), was filed on September 17, 1987 and charged ten defendants with having committed various crimes in connection with their alleged membership in "the Westies," a group hailing from the Hell's Kitchen neighborhood on the West Side of Manhattan. The first two counts of the indictment charged all ten defendants with participating in and with conspiring to participate in a racketeering enterprise, namely the Westies, in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1962(c) and (d) (1982). The RICO counts detailed thirty-two predicate acts of racketeering activity, including eight murders, three attempted murders, five conspiracies to commit murder, four kidnappings, and various acts of loansharking, extortion, narcotics trafficking, illegal gambling, mail fraud and counterfeiting. Trial of eight of the defendants (the other two being fugitives) began on October 5, 1987, and continues to this day. The government completed its case on January 14, 1988, the defense case began on January 19, and summations were scheduled for the week of February 8. The district court is expected to charge the jury at the end of the week.

On January 22 and 26 Judge Knapp distributed drafts of his proposed charge. The proposed instructions on Counts One and Two define a RICO enterprise, membership in the enterprise, and the jurisdictional requirement that the enterprise have an effect on interstate commerce. The proposed charge also would instruct the jury about the twenty-eight predicate acts that have not been either dismissed or otherwise redacted, ¹ about the parties' contentions regarding those acts, and about the requirement that an act be "related to the enterprise." Proposed Charge (Second Draft) at 7; see Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 51 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); United States v The district court's proposed charge thus does not ask the jury to render a general verdict on Counts One and Two. Instead, the jury is simply required to find, through special verdicts, whether the government has proven the existence of the enterprise, and, with respect to each defendant, whether the government has proven membership in the enterprise and guilt as to individual predicate acts beyond a reasonable doubt. Upon receipt of these special verdicts, Judge Knapp proposes to extrapolate each defendant's guilt on the RICO counts mechanically from the jury's findings. For example, if the jury finds both the existence of an enterprise and the defendants' membership therein, Judge Knapp would determine guilt or innocence on Counts One and Two merely by counting the number of predicate acts found by the jury to have been committed by each defendant. The requisite number for conviction, of course, is two. See United States v. Benevento, 836 F.2d 60, 72 (2d Cir.1987); Ianniello, 808 F.2d at 189-93; 18 U.S.C. Sec. 1961(5) (1982).

Ianniello, 808 F.2d 184, 189-93 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3229, 97 L.Ed.2d 736 (1987). Notable by its omission, however, is any proposed instruction requiring the jury to make any finding as to whether the defendants participated in the affairs of a racketeering enterprise through a pattern of racketeering activity.

Judge Knapp explained his proposed charge as follows:

In the first place, unless, as I said earlier, the defendants agree to this method, it's all over; if the government doesn't agree to it, they can try to persuade me to change it, but if the defendants don't agree that's the end of the matter, because I have adopted this method because I think it is beneficial to defendants, and it would be clearly improper if they object.

* * *

* * *

I believe a pattern of racketeering is established on two racketeering acts and they have to be related in some way. The jury is not asked to find out whether there is a pattern of racketeering. Usually in these charges they say you have got to find a pattern of racketeering, give a lot of vague language and if the jury wants to find a verdict, it does, and the appellate courts say, a pattern of racketeering, that's what the judge said and that's what you are entitled to, and if you object and if the government persuades me that I should do it anyway, that's what I will do; if you don't object, I will do it automatically.

What I am trying to work out is a Charge which merely asks the jury to find specific things, and those findings should be able to mathematically tell us whether the RICO statute has been violated or not.

For example, I don't tell them they have to find two RICO counts as to each defendant. I just tell them what they have to do as to each RICO count, find whether it was established or not. We can easily look at the things and find out what if they found 2.

What is my theory in that? My theory is if they have to look at each count and decide whether or not that count, racketeering act, has been established, they will look at that act. If they are told they've got to have 2 to find a defendant guilty, they may go back and say, gee, if we need 2, we better be careful not to acquit, and I don't see why the government should have that benefit.

The defendants consented to the district court's instructions and its use of special verdicts. The government, however, objected vigorously, arguing that the district court was obligated to instruct the jury on the requirement of finding a "pattern of racketeering activity." The government also made a request, which was denied on January 26, that the jury be required to return a general verdict. On January 27, the government sought, and the district court denied, reconsideration of the court's ruling.

On Monday, February 1, the government filed the instant petition for a writ of mandamus pursuant to 28 U.S.C. Sec. 1651 (1982) and Fed.R.App.P. 21. Because of the imminence of closing arguments and jury deliberations

in the trial below, we scheduled oral argument for Friday, February 5. We denied the petition by order shortly after argument.

DISCUSSION

It is settled, of course, that "[m]andamus is an extraordinary remedy, the 'touchstones' of which are 'usurpation of power, clear abuse of discretion and the presence of an issue of first impression.' " In re United States, 680 F.2d 9, 12 (2d Cir.1982) (quoting American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 283 (2d Cir.1967)); see also In re Weisman, 835 F.2d 23, 27 (2d Cir.1987); In re IBM Corp., 687 F.2d 591, 599 (2d Cir.1982). "An appellate court should not issue mandamus to correct even gross error, but should issue the writ when necessary 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.1987) (citation omitted) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). The government, protesting what it believes to be an "egregious usurpation of power" by Judge Knapp, Gov't Br. at 31, asserts that mandamus should issue here because its petition "raises significant questions of the proper exercise of judicial power and the administration of criminal justice in the federal courts that would evade review if not considered at this time." Id. (quoting United States v. Werker, 535 F.2d 198, 200 (2d Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d 296 (1976)).

The government asserts that Judge Knapp's proposed charge constitutes an extraordinary usurpation of power for two reasons. First, the government contends that Judge Knapp proposes to deprive it of its right to a general verdict on a defendant's guilt or innocence. Second, the government contends that the charge infringes upon its jury-trial rights by failing to instruct the jury on the existence of a "pattern of racketeering activity," an essential element of the RICO charges.

We do not believe the government's chracterization of the issues is entirely accurate. At oral argument, we asked the government whether it would...