U.S. v. Indelicato

• Decision Date: 13 January 1989
• Docket Number: Nos. 98,106,D,s. 98
• Citation: 865 F.2d 1370
• Parties: , RICO Bus.Disp.Guide 7113 UNITED STATES of America, Appellee, v. Anthony INDELICATO, Defendant-Appellant. ockets 87-1085, 87-1215 and 87-1075 L.
• Court: U.S. Court of Appeals — Second Circuit

Page 1370

865 F.2d 1370

57 USLW 2434, RICO Bus.Disp.Guide 7113

UNITED STATES of America, Appellee, v. Anthony INDELICATO, Defendant-Appellant.

Nos. 98, 106, Dockets 87-1085, 87-1215 and 87-1075 L.

United States Court of Appeals Second Circuit.

Argued June 13, 1988.

Decided Jan. 13, 1989.

John F. Savarese, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., Aaron Marcu, John Gilmore Childers, Asst. U.S. Attys., Michael Chertoff, Sp. Asst. U.S. Atty., New York City, on the brief), for appellee.

Mark F. Pomerantz, New York City (Ronald P. Fischetti, Warren L. Feldman, David T. Grudberg, Fischetti & Pomerantz, New York City, on the brief), for defendant-appellant.

Gerald B. Lefcourt, P.C. (Gerald B. Lefcourt, Joshua L. Dratel, New York City, Walter P. Loughlin, Newark, N.J., of counsel), for amicus curiae Marvin Kaplan.

Before OAKES, Chief Judge, ^* FEINBERG, ^* MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT, MINER, ALTIMARI, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Anthony Indelicato has appealed from a judgment entered in the United States District Court for the Southern District of New York, after a jury trial before Richard Owen, Judge, convicting him of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1961 et seq. (1982 & Supp. IV 1986). He was sentenced to two consecutive 20-year terms of incarceration and a $50,000 fine. His appeal and the appeals of his codefendants were heard by a panel of this Court and remain pending before that panel. We granted this rehearing en banc in order to consider the limited question of whether Indelicato's participation in three murders as part of a single criminal transaction could constitute a "pattern of racketeering activity" within the meaning of RICO, 18 U.S.C. Sec. 1961(5). For the reasons below, we answer that question in the affirmative, and we remand the matter to the panel for further proceedings consistent with this holding.

I. BACKGROUND

Indelicato was charged in two counts of a 25-count superseding indictment charging him and seven codefendants with various crimes arising out of operations of an organization known as the "Commission" of La Cosa Nostra, which was alleged to be the ruling body of the La Cosa Nostra organized crime families throughout the United States. The Commission was alleged to be a RICO enterprise, and Indelicato was charged with one count of participating in, and one count of conspiring to participate in, the affairs of the Commission through a pattern of racketeering activity, in violation of 18 U.S.C. Secs. 1962(c) and (d), respectively.

To the extent pertinent to the question considered in this en banc rehearing, the evidence at trial, taken in the light most favorable to the government, revealed the following. The Commission had existed for decades as the governing body of the five La Cosa Nostra families in New York City and affiliated families in other cities. Each organized crime family included a "boss" or leader, assisted by an underboss and a counselor; beneath this level were "capos" or captains, who supervised a number of people who had been made "members" or "soldiers" of the family. To be made a member of such a family, one was required to vow obedience to the rules and orders of the Commission and to be personally approved by it for admission. The functions of the Commission included overseeing interfamily ventures and intrafamily leadership disputes. The prior approval of the Commission was required before any family boss could be killed.

The Commission consisted principally of the bosses of the five organized crime families in the New York City area. During most of the 1970's, however, it did not include a representative of one such family, the Bonanno organized crime family ("Bonanno family"), because of leadership disputes within that family. During this period, the Commission itself directly controlled the operations of the Bonanno family.

In 1979, the boss of the Bonanno family was Carmine Galante. Indelicato was a member of the family; his father was a capo; and an uncle, J.B. Indelicato, was a member. As part of an overall plan to end the factional disputes within the Bonanno family and to realign its leadership, the Commission planned and implemented the murder of Galante and two of his close associates.

In planning the murder of Galante, the Commission worked through Aniello Dellacroce, underboss of the Gambino organized crime family, Stefano Canone, the counselor of the Bonanno family, and several soldiers in the Bonanno family including Indelicato, Dominic Trinchera, and Cesare Bonventre. Thus, in May or June 1979, Trinchera introduced Indelicato to one Louis Giongetti, a lifelong felon. Indelicato asked Giongetti whether he had ever "hit," i.e., killed, anyone. Giongetti assured Indelicato that he was experienced and trustworthy. In early July, Indelicato and Trinchera met in a bar with Giongetti; Trinchera sent Giongetti to a "safe house" to retrieve a cache of shotguns and other weapons.

On July 12, 1979, Indelicato and two other men, all wearing ski masks, entered a restaurant in Brooklyn, New York, where Galante, his cousin Giuseppe Turano, and Galante's friend and associate Leonard Coppola were having lunch. Using guns of the type earlier amassed at the bar, Indelicato and his two companions shot and killed Galante, Turano, and Coppola. The victims were shot numerous times at close range with several weapons. The evidence also showed that two other men, including Bonventre, who had accompanied Coppola to lunch and were uninjured in the shootings, had joined in shooting Coppola, Turano, and Galante.

Indelicato and his two companions fled in a car stolen a month earlier. After abandoning that car, Indelicato immediately went with his father, his uncle J.B., and Phillip Giaccone, another Bonanno family capo, to a social club in Manhattan to report his success to Dellacroce and Canone. A surveillance videotape showed Indelicato being congratulated by Canone.

Thereafter, Indelicato remained involved with the Commission. He, Trinchera, and Bonventre were promoted to the rank of capo. Indelicato maintained that rank until at least 1981.

The three murders were the only RICO predicate acts alleged against Indelicato. He was not named in any of the remaining 23 counts of the indictment. The proof at trial relating to the three murders included, in addition to the above, ballistics and medical forensic evidence, eyewitness evidence, and Indelicato's palm print on an inside door handle of the getaway car. Indelicato was convicted on both of the counts against him. His appeal and the appeals of his codefendants were heard before a panel of this Court in September 1987, and those appeals remain pending.

Indelicato's principal argument on appeal is that proof of his commission of, or agreement to commit, three murders as part of a single criminal transaction is insufficient to establish a "pattern of racketeering activity" within the meaning of RICO. In April 1988, we agreed to rehear this issue en banc, in tandem with an en banc rehearing of Beauford v. Helmsley, 843 F.2d 103 (1988). For the reasons below, we conclude that the facts proven by the government are sufficient to establish a RICO pattern.

II. DISCUSSION

RICO Sec. 1962(c) makes it unlawful, in pertinent part,

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.

18 U.S.C. Sec. 1962(c). Section 1962(d) makes it unlawful to conspire to violate Secs. 1962(a), (b), or (c). The terms "enterprise," "racketeering activity," and "pattern of racketeering activity" are defined in 18 U.S.C. Sec. 1961, in pertinent part, as follows:

(1) "racketeering activity" means (A) any act or threat involving [inter alia ] murder, kidnaping, gambling, arson, robbery, bribery, extortion, ... which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: ... section 224 (relating to sports bribery), ... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), ... section 1952 (relating to racketeering), ... sections 2314 and 2315 (relating to interstate transportation of stolen property), ... (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving ... the felonious manufacture, importation, ... or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States....

....

(4) "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity;

(5) "pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; ....

18 U.S.C. Secs. 1961(1), (4), and (5).

Our assessment of Indelicato's contention that his commission of three murders as part of a single criminal episode or transaction cannot be considered a RICO "pattern" requires a review of the development of Second Circuit doctrine as to the RICO concept of pattern both before and after the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473...