U.S. v. Mazzei

• Citation: 700 F.2d 85
• Decision Date: 23 May 1983
• Docket Number: No. 285,D,285
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: UNITED STATES of America, Appellee, v. Paul MAZZEI, Defendant-Appellant. ocket 82-1146.

Page 85

700 F.2d 85

UNITED STATES of America, Appellee, v. Paul MAZZEI, Defendant-Appellant.

No. 285, Docket 82-1146.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1982.

Decided Jan. 28, 1983.

Certiorari Denied May 23, 1983. See 103 S.Ct. 2124.

Phylis Skloot Bamberger, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Lawrence H. Sharf, Sp. Atty., E.D.N.Y., Brooklyn, N.Y. of counsel), for appellee.

Before LUMBARD, MESKILL and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

The defendant Paul Mazzei (Mazzei) appeals from the judgment of the United States District Court for the Eastern District of New York, Bramwell, J., convicting him, after a four week jury trial, of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. (1976 & Supp. V 1981) (RICO), conspiracy to commit sports bribery, 18 U.S.C. Sec. 224 (1976), and interstate travel with the intent to commit bribery, 18 U.S.C. Sec. 1952 (1976). Mazzei was sentenced to ten years imprisonment on the RICO count, and concurrent five year prison terms on the remaining two counts.

Facts

Mazzei's conviction arises from his involvement in the Boston College (B.C.) "point shaving" scheme. The facts pertinent to this criminal enterprise, which gained national prominence in February of 1981 when Sports Illustrated (SI) published an article exposing the scheme, ¹ are discussed extensively in the opinion that has been filed simultaneously with this decision. See United States v. Burke, 700 F.2d 70, (2d Cir. 1983). We refer the reader to that opinion for a more complete discussion of this scandal and therefore limit our discussion of the facts to those implicating Mazzei in the B.C. conspiracy.

The evidence presented at trial revealed that three general groups of individuals were responsible for devising and implementing the point shaving scheme. The "Pittsburgh Connection" consisted of Rocco Perla, his brother Anthony Perla, and appellant Mazzei. They appear to have initially conceived of the point shaving concept and were able to enlist the cooperation of Richard Kuhn, a B.C. basketball player who was a high school friend of Rocco Perla. The "New York Connection" consisted of Henry Hill and James Burke, who were responsible for creating a bookmaking syndicate to bet on B.C. games and arranging "protection" for the conspirators. The third group of individuals implicated in the scheme were the "insiders," those members of the B.C. basketball team who agreed to "shave points" in certain preselected games. The players received payments, usually $2,500 per game, in exchange for ensuring that B.C. did not beat the "point spread" in those games where the betting syndicate wagered against B.C.

Mazzei acted largely as a "middleman" in this conspiracy. He was linked to the Perla brothers in Pittsburgh and interceded on their behalf to enlist his "friends" in New York, including Henry Hill, to provide support and protection for the criminal enterprise. Mazzei had befriended Hill while both individuals were serving time in prison and he apparently used this connection to gain access to major New York gambling circles.

Henry Hill ultimately proved to be an unreliable friend. In exchange for full immunity, Hill exposed the point shaving scheme and implicated Mazzei in this criminal enterprise. Mazzei was jointly indicted and tried with James Burke, Anthony Perla, Rocco Perla, and Richard Kuhn, each of whom were found guilty under RICO and the bribery statutes. Mazzei has decided to appeal his conviction separate from his co-defendants, who pursued a joint appeal. Mazzei raises a variety of claims, some of which are identical to those argued by his co-defendants, others of which are distinct. To the extent that the claims are identical, they have been considered and rejected in the Burke opinion. ² This decision addresses only those claims that are unique to Mazzei.

Discussion

A. Enterprise Element--RICO

Mazzei's principal contention on appeal is that the district court improperly instructed the jury on the elements of the RICO offense. Specifically, Mazzei argues that the district court failed to explain to the jury that an "enterprise," as defined in 18 U.S.C. Sec. 1961(4) (1976), ³ must be separate and distinct from its "pattern of racketeering activity," as defined in 18 U.S.C. Sec. 1962(c) (1976).

None of the defendants below, including Mazzei, submitted requests to charge with regard to the definition of enterprise, nor was any exception taken to that portion of the charge. Accordingly, Mazzei's claim must fail unless there was plain error in the charge given. Mazzei's contention that the district court failed to charge an essential element of the RICO offense, if established, would amount to plain error. See United States v. DeMarco, 488 F.2d 828, 832 (2d Cir.1973); United States v. Fields, 466 F.2d 119, 121 (2d Cir.1972).

The indictment charged the defendants with a violation of RICO, 18 U.S.C. Sec. 1962(c) (1976), which makes unlawful "the conduct of [an] enterprise's affairs through a pattern of racketeering activity." Included within the statutory definition of enterprise is a "group of individuals associated in fact although not a legal entity." 18 U.S.C. Sec. 1961(4) (1976). The indictment alleged an enterprise consisting of "a group of individuals associated in fact and utilizing, among other things, interstate travel and facilities in interstate commerce to influence by means of bribery the outcome of basketball games involving the Boston College varsity basketball team and to profit therefrom by wagering on those games." App. of Appellant at B1. The alleged pattern of racketeering activity was the defendants' efforts during 1978 and 1979 to influence the outcome of B.C. basketball games in violation of 18 U.S.C. Sec. 224 (1976), and the defendants' travel in interstate commerce with the intent to commit bribery in order to influence the outcome of B.C. basketball games in violation of 18 U.S.C. Sec. 1952 (1976).

Mazzei claims that to establish a violation of RICO, there must be proof that the alleged enterprise was distinct from the alleged pattern of racketeering activity. According to Mazzei, the government's indictment alleged an enterprise identical to the alleged pattern of racketeering activity, to wit, a conspiracy formed for the sole purpose of shaving points in B.C. basketball games. To support this contention, he relies principally on United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) and United States v. Bledsoe, 674 F.2d 647 (8th Cir.1982).

In Turkette, the Supreme Court was asked to decide "whether the term 'enterprise' as used in RICO encompasses both legitimate and illegitimate enterprises or is limited in application to the former." 452 U.S. at 578, 101 S.Ct. at 2526. The Turkette Court reviewed the definition of enterprise found in 18 U.S.C. Sec. 1961(4) (1976) and concluded that the statute did not exclude illegitimate organizations. The Court found that the legislative history of RICO compelled the same conclusion. In response to criticism that including illegitimate organizations in the definition of enterprise would render redundant the element of a pattern of racketeering activity, the Court reasoned:

That a wholly criminal enterprise comes within the ambit of the statute does not mean that a "pattern of racketeering activity" is an "enterprise." In order to secure a conviction under RICO, the Government must prove both the existence of an "enterprise" and the connected "pattern of racketeering activity." The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. Sec. 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The "enterprise" is not the "pattern of racketeering activity"; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.

Id. at 583, 101 S.Ct. at 2528 (footnote omitted).

We agree that Turkette requires the government to prove both the existence of an "enterprise" and a "pattern of racketeering activity." We do not, however, read Turkette to hold that proof of these separate elements be distinct and independent, as long as the proof offered is sufficient to satisfy both elements. There is nothing in the language or legislative history of the Act to support the appellant's view. Moreover, it does not make sense to impose a "distinctness" requirement in RICO cases. The appellant would have us rule that his actions are beyond the purview of RICO because he engaged only in point shaving and did not commit criminal acts other than those specifically contemplated in the conspiracy. Mazzei's interpretation would lead to the anomalous result that a large scale underworld operation which engaged solely in trafficking of heroin would not be subject to RICO's enhanced sanctions, whereas small-time criminals jointly engaged in infrequent sales of contraband drugs and illegal handguns arguably could be prosecuted under RICO. The Court will not place its imprimatur on such...