ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Adams and Hunter, Circuit Judges and Ackerman, District Judge*fn*
The appellants in this case challenge their convictions under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), and the federal gambling statute, 18 U.S.C. § 1955. Their primary argument is that the evidence failed to show beyond a reasonable doubt either that they were engaged in the conduct of a single on-going enterprise as required for the RICO count for which they were convicted, or that their activity constituted a single conspiracy. They also contend that the jury could not properly have found that each appellant committed the acts charged against him as predicate offenses of the RICO count. In addition, various appellants raise the following claims individually: that the evidence as to particular counts was insufficient; that the district court committed reversible trial errors; that certain confidential attorney-client communications were intercepted by the F.B.I. wiretaps; and that RICO violates both the fifth and eighth amendment rights of the appellants by permitting the imposition of unjustifiably harsh sentences. After considering all of the contentions raised by each defendant, we conclude that the evidence was sufficient in all respects and that no reversible errors were committed by the district court. Accordingly, the convictions will be affirmed.
This RICO case involves a number of persons who were members of an alleged "crime family" in Philadelphia. The government asserts that during the period covered by the indictment, 1972 to 1978, there existed an on-going criminal enterprise, implicating each of the defendants, and that this enterprise engaged in activities that included illegal gambling, mail fraud, wire fraud, extortionate credit transactions and collection of unlawful debts. At trial, the bulk of the evidence consisted of tape recordings of conversations among the co-conspirators that were intercepted by government wiretaps at three locations: Frank's Cabana Steak House, the Tyrone DeNittis Talent Agency; and the C. Warren Check Cashing Company. The transcripts of these tapes fill eight volumes.
A. The Participants in the Enterprise
Angelo Bruno, a named co-conspirator, headed the enterprise; the "underboss" was co-defendant Philip Testa. Supervisors in the enterprise, who worked under Testa, included appellant Harry Riccobene, co-defendants Frank Narducci and Carl Ippolito, and co-conspirators Nicodemo Scarfo, John Simone and Frank Sindone. Appellant Joseph Ciancaglini was, to a lesser extent, part of the core group of the organization. He appears to have worked for Sindone, the most active of the supervisors, to oversee many of the gambling operations of the enterprise.
The other appellants were not major figures in the overall operation of the organization. Mario Riccobene was a partner of his half-brother Harry in the loan-sharking and numbers businesses that they operated out of the DeNittis Talent Agency in South Philadelphia; Mario also appears to have served occasionally as Bruno's driver. Joseph Bongiovanni worked for the Riccobenes.
Charles Warrington and Pasquale Spirito, the final two appellants, had virtually no direct contact with the Riccobenes and Bongiovanni. Warrington ran various gambling operations, both numbers and craps games, at which Spirito worked.*fn1 These operations were supervised by Ciancaglini, who also oversaw the Riccobenes' numbers game.
By the time the trial took place, a number of the co-conspirators and defendants had been killed, including Bruno, Testa, Narducci, Sindone and Simone; Ippolito was declared incompetent to stand trial; and Scarfo is in federal custody on unrelated charges.*fn2
The indictment charges that the "pattern of racketeering activity" in this case is demonstrated by eight predicate offenses committed by various appellants. Some of these activities implicate just one appellant, acting with other co-conspirators. There is no single predicate offense in which all the appellants participated together.*fn3
1. Chestnut Hill Lincoln Mercury Dealership
Three of the predicate offenses charged against appellant Ciancaglini arose from activities connected with the Chestnut Hill Lincoln Mercury car dealership. Harry Brown, the general manager of the dealership, testified that since 1969 he had borrowed money from Frank Sindone at a rate of 2 1/2% interest per week. After a time, Brown, with the permission of Testa and Sindone, lent money to Russell Wilmerton at unlawfully high interest rates. When Wilmerton could not repay the loan, Brown, Ciancaglini and another man went to his house twice. Ciancaglini remained silent as the other men threatened Wilmerton. Ciancaglini later told Harry Riccobene that he had gone to Wilmerton's house to help collect the debt. The collection of the Wilmerton debt is the basis for the racketeering acts of extortionate credit and unlawful debt collection charged against Ciancaglini.
Ciancaglini attended a meeting with Brown, Testa, Sindone and Brown's employer to discuss methods of generating cash so that Brown could repay some of his loans to Testa and Sindone. Brown proposed the staging of a robbery at the car dealership. Sindone and Testa agreed, and as part of the scheme, arranged that Ciancaglini be given a car free of charge. The records of the business were altered to show that Ciancaglini paid $3,000 in cash for the car on the day of the robbery, although he had in fact paid nothing. The dealership reported the robbery to the police and to its insurance carrier, claiming the $3,000 supposedly paid by Ciancaglini as part of the loss; the carrier paid the claim. When questioned by the police, Ciancaglini falsely stated that he had paid that amount of cash for the automobile, and that he knew nothing of the robbery. This scheme is the basis for the mail fraud claim against Ciancaglini as a predicate offense to the RICO conspiracy.*fn4
2. The Numbers Operations
In 1976, Ciancaglini, Sindone and Testa managed an illegal numbers operation which they discussed in several intercepted conversations. Ciancaglini also had conversations, which were recorded, with persons working for him concerning this operation. He discussed the accounts with Sindone and Testa and described his own role as collecting the money from the game. He referred to Sindone as his "boss." This operation formed the basis for one of the predicate offenses charged against Ciancaglini.
Between September and November 1977, Harry and Mario Riccobene conducted a numbers operation. At trial, a government expert testified that, in his estimation, more than 35 persons ran numbers for the Riccobenes; one was Joseph Bongiovanni, who discussed the numbers operation with Harry Riccobene several times. Ciancaglini was overseeing this business and coordinating the numbers games for the enterprise. He apparently visited the Riccobenes at their office every Wednesday, and after one such visit he was seen handling a large sum of cash to Angelo Bruno. According to the government's theory of the case, the Wednesday visits were for the purpose of collecting a share of the week's numbers profits. At one of these meetings, Ciancaglini and Harry Riccobene discussed the "cut numbers" problem and the need for a uniform policy.*fn5 Ciancaglini promised that he would discuss the matter with Sindone, who might then have to go to Bruno to have it resolved. This numbers operation was one of the predicate offenses charged against the Riccobenes, Ciancaglini and Bongiovanni. It was also the basis for the substantive crime of illegal gambling charged against these four in Count III of the indictment.
There was evidence that Warrington conducted an illegal numbers operation between April and June 1978. Warrington apparently reported to Ciancaglini and Sindone, and the tapes indicate that on at least one occasion Warrington met with Ciancaglini to straighten out a problem with one of the numbers runners and to "unload" a "two weeks ribbon."*fn6 This operation formed the basis of one predicate offense for Ciancaglini and Warrington.
3. Riccobenes' Loan Business
The wire-tap transcripts contain several conversations between Harry Riccobene and others concerning the loansharking business that Harry Riccobene conducted out of the DeNittis Talent Agency. Bongiovanni proposed various loans and Harry Riccobene set the terms. The usual interest rates for these loans was 5% per week. In one conversation, the two men discussed a customer named Abbotts who had borrowed $1,000, paid back $800 and still owed $400. Bongiovanni then added that Abbotts was to pay $100 per week on his loan, which amounts to an interest rate of 20% every ten weeks, significantly higher than the current prime rate. This and other similar transactions formed the basis for the predicate offense of "collection of unlawful debt" that was charged against Harry Riccobene and Bongiovanni.*fn7
Intercepted conversations between Mario and Harry Riccobene indicated that these two men threatened their debtors with physical harm if loans were not repaid promptly. On October 17, 1977, the brothers discussed a loan they had made to someone named "Richie," who had not been making his payments. Mario said "I caught that Richie. I almost hit Richie across the f head, that's why he's starting to pay. I caught him in the john over there. . . . I put him in the corner. And I told him if you don't bring $100 a week, the next time I see you, there's no excuse. I'm gonna leave you on the street." These activities of Harry and Mario Riccobene in the fall of 1977 formed the basis for the predicate offense charged against them of collection of credit through extortionate means.
4. Reed Street Craps Game
In April, 1976, FBI agents conducted a court-authorized search of 735 Reed Street in Philadelphia. A craps game was apparently being conducted, and 45 people were present. There was gambling paraphernalia and $15,000 cash on the floor. Appellant Warrington was present. In various recorded conversations after this raid, both men indicated that they operated the game along with others. This was not a one-night game, but rather an on-going operation that was not reopened after the raid. An FBI expert testified at trial that, based on a conversation among Testa, Narducci, Ippolito and Sindone, it was his opinion that those four men and Warrington were the people who had a financial interest in the game. The expert also testified that in an average 6-hour game night, approximately $522,000 would be wagered, generating a profit of between $18,000 and $25,000.
The government contends that Ciancaglini served as the intermediary between Warrington, Narducci, Ippolito and Grande on the one side and Testa and Sindone on the other. Taped conversations indicate that Ciancaglini supervised at least one craps game, but nothing in the portions of the tapes cited by the government in its brief in this Court specifically mentioned the Reed Street game. The Reed Street game was the basis of one predicate offense charged against Warrington and Ciancaglini and ...