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United States v. Irizarry

August 25, 2003

UNITED STATES OF AMERICA
v.
ELVIS IRIZARRY, APPELLANT



Appeal from the United States District Court for the District of New Jersey (Crim. No. 00-cr-00333-2) District Court: Hon. Nicholas H. Politan

Before: Becker, Chief Judge,*fn1 Scirica *fn2 and McKEE, Circuit Judges

The opinion of the court was delivered by: McKEE, Circuit Judge

PRECEDENTIAL

Argued: September 17, 2002

OPINION OF THE COURT

Elvis Irizarry appeals his convictions for violating, and conspiring to violate, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962 (c) and (d), a drug offense, and several other substantive offenses. His major complaint is that the government improperly joined and tried separate and unrelated crimes and conspiracies he allegedly committed with several individuals over the course of many years. We will affirm the convictions for the reasons set forth below.

I. FACTUAL BACKGROUND

Viewed in a light most favorable to the government, the trial evidence showed that Irizarry was a central member of a criminal group that operated out of Jersey City, New Jersey for more than seven years. Irizarry's principal job was carrying out the group's criminal activities, including inter alia, murder, arson, armed robbery, drug trafficking, and the extortionate collection of debts. Franco Durso was Irizarry's boss. Durso told Irizarry what to do "if anything needed to be done so far as... persuad[ing] people to do things, to get something done." App. at 3163. As the boss, Durso had the final say over Irizarry's and the group's activities. For, example, when John McGuinness came to Irizarry with a proposal to rob a check-cashing supermarket in Paterson, New Jersey, Irizarry told McGuiness that he "had to clear it with Franco [Durso] before [McGuiness] could talk to [Irizarry]." App. at 3169.

Irizarry carried out the group's criminal activities through a group of associates that included, among others, Michael Soto, Raymond Looney, Joseph Sammartino, Lee Farrell and Samier Bakhoury (the "crew"). These five individuals formed the core membership of Irizarry's crew although others were associated with it from time to time.

Durso "ran the show" for Massimo Ranieri in Jersey City, and Durso and Irizarry both answered to Ranieri. App. at 3168. Ranieri was next in line to take control of a group that was the Sicilian wing of the notorious Gambino crime family. Ranieri was based in Brooklyn, New York, but also spent time in Florida. Ranieri's criminal activities included debt collection, extortion and murder.

Durso paid a weekly "tribute to Ranieri in the amount of $500 to $600. App. at 3198-99. McGuiness testified that a "tribute" is "[w]hen you pay somebody to look over you. Watch out for you" with regard to "disputes and stuff." Id. For example, McGuiness once approached Durso because "Timmy," a man McGuinness knew, had been "stiffed" on a bet "with some bookmaker in New York." App. at 3201-02. Durso brought McGuiness and Timmy to Brooklyn to meet Ranieri. Ranieri spoke to Timmy alone and "[a] few days later [Timmy] got his money." App. at 3203.

A. Loansharking.

Loansharking was one of the principal ways the group generated income. Durso loaned his own money, as well as money belonging to others including McGuiness, Anthony Rotolo, (also known as "Tony the Guinea)," and Rocco Errico. If Durso was not repaid, Irizarry was sent to collect. Between 1993 and 2000, Irizarry took various crew members — including, Farrell, Looney, Sammartino and Soto — with him on collection rounds in order to have "extra bodies" that would "intimidate people." App. at 2766. When problems arose, Irizarry and the crew would resort to violence. For example, Looney testified about one occasion in early 1996, in which Irizarry confronted John Yengo at Carmine's Bar. Yengo owed money to several people, including Durso, but he was not making payments. Irizarry went into the bathroom to "talk" to Yengo while Looney remained outside. Looney stated he "heard a commotion" coming from the bathroom. App. at 2989. When Looney went inside the bathroom to check, he saw Irizarry and Yengo "scuffling" and saw Irizarry hit Yengo over the head with a hammer. App. at 2989-90. According to Looney, Irizarry then proceeded to "beat[ ] [Yengo's] ass." Id. Yengo then "immediately [took some money]... out of his pocket and handed" it to Irizarry. App. at 2990. According to Looney, Yengo tried to explain that he came to Carmine's "to talk to Franco [Durso] to tell him he needed time to pay." Id.

A similar incident involved someone known as "Farice," or "The Fisherman." Farice owed approximately $20,000 to Durso, approximately $30,000 to an individual named "Michael Scurti" and he owed an unknown amount to Rotolo. At some point, Farice received a settlement check and used some of the proceeds to pay Scurti, but not Durso. When Durso learned that Scurti had been favored he told Irizarry, "Let's go down and straighten it the f[_] out." App. at 2992. A week later, Irizarry entered the Italian American Club that was across the street from Durso's pizzeria and returned with a "bloodied up" Scurti. App. at 2992093. Irizarry later told Looney that Scurti "got his ass beat" and he was "going to have to pay that money." App. at 2993.

On another occasion, Looney recalled accompanying Irizarry to a gas station in Fort Lee, New Jersey to make a collection. On the way, Irizarry asked Looney if he would have a problem killing the man who owed the money if he did not pay. Looney assured Irizarry he would do whatever it would "take to get this over with," App. at 2993. However, this incident did not result in anyone being killed.

On yet another occasion, Durso approached McGuiness for information about a pizzeria supplier who owed Durso money, and McGuiness informed Durso of the supplier's schedule. Irizarry arrived at a local pizzeria on the date scheduled for that supplier's deliveries and gave him "a little shot in the head." App. at 3192-94. Although McGuiness did not see the attack, he saw Irizarry go into the pizzeria, and thereafter saw the supplier "running out... holding his head and scared. He was bleeding." App. at 3194.

B. Cocaine Trafficking.

The crew also generated income by trafficking in illegal drugs. From as early as 1991 or 1992, Durso sold cocaine out of his pizzeria and out of two bars in Jersey City — "Carmine's" and "Martucci's". McCloskey assisted Durso's drug trafficking by "cutting" cocaine for Durso, preparing it for resale, and occasionally selling it. Durso sometimes gave McCloskey funds to purchase drugs, and the two referred to themselves as "partners."

Irizarry's role in the trafficking scheme consisted of traveling to New York to purchase cocaine and then transporting it back to Jersey City. Irizarry used crew members Sammartino, Soto, Bakhoury, Farrell and Looney to help transport drugs as early as 1993. The routine was generally the same. One or more crew members drove to New York City with Irizarry. There, Irizarry purchased drugs either at a "bodega" or a Cuban sandwich shop. They would then return together to Jersey City and deliver the cocaine to Durso or McCloskey. On occasion, Irizarry made the crew member transport the cocaine back to New Jersey by train while he drove back alone by car.

Although Irizarry controlled the actual transportation of the cocaine, Durso had ultimate control of the operation. A 1996 episode illustrates the relative authority of the two confederates. Sometime early that year, Irizarry wanted Bakhoury to take over his role in the drug operation while he, Irizarry, was in Italy. However, Durso refused to allow Bakhoury to do so because Bakhoury smoked marijuana, and Durso apparently thought that Bakhoury could not be trusted.

C. Armed Robbery.

In early 1994, Irizarry hand picked members of his crew for an armed robbery of an armored truck that delivered money to and from the Kingsbrook Jewish Medical Center in Brooklyn, New York. The robbery scheme apparently resulted from a "tip" Irizarry had received from associates in New York with an "inside connection." App. at 2739, 2119. The robbery afforded Irizarry an opportunity "to build a reputation for himself," and he stated that it would also be a good thing for the "old man," i.e., Ranieri. App. at 1467.

Irizarry, Sammartino, Farrell and Bean had several discussions about the details of the robbery, and Durso and Irizarry eventually arranged for a car that would provide the necessary transportation. However, after members of the crew "cased" the hospital, Farrell became concerned over "how dangerous [the scheme] was" and informed Durso of his concerns. App. at 2747-48. The robbery was called off, but Irizarry later told Farrell the robbery was important to him (Irizarry) and that the planners were fortunate they were still alive.

Around the same time in early 1996, Irizarry discussed a number of robberies with other confederates including Soto and Looney. The discussions included robbing a supermarket that cashed checks in Paterson, New Jersey, and a check cashing business in Hoboken, New Jersey. McGuiness targeted both these businesses for the group, but he had to get Durso's permission before discussing the robberies with Irizarry's crew. On each occasion, Irizarry's crew went as far as "casing" the businesses even though they did not actually commit the robberies. The Paterson robbery was called off because Irizarry and another crew member were arrested on the day the robbery was to occur after police officers stopped Irizarry's car and discovered a bulletproof vest and a can of mace.

D. Arson.

In 1996, Russell Laviola informed Durso that he was having difficulty collecting rent from tenants at a building located at 214 Belvidere Avenue in Jersey City, New Jersey, that Laviola owned. Durso responded by telling Irizarry to visit the tenants with Laviola. Irizarry did so, and informed the tenants that "he was involved with the house... [and] wanted to get the rent." App. at 2675. The tenants apparently got the message because they thereafter paid Laviola some of the delinquent rent. Laviola, in turn, gave Irizarry $100 at Durso's request.

However, the tenants moved out of the building about a week later, and Laviola thereafter informed Durso that he (Laviola) was having a difficult time selling the property. Ever ready to volunteer a solution for a friend in need; Durso responded by suggesting the problem could be solved by burning the building down. Laviola agreed and paid Durso between $2,000 and $5,000. Thereafter, on March 18, 1996, Durso sent Irizarry and Looney to the building where they used gasoline to incinerate the building. App. at 2707, 2973. Thereafter, they went to Carmine's Restaurant where they informed Durso that they had "burned the place down." App. at 2973. However, Laviola remained dissatisfied even though he collected $40,000 in insurance proceeds, because the house did not burn all the way to the ground.*fn3

A couple of months later, someone known as "Red" contacted Durso because he needed to dispose of his house on Sherman Avenue in Jersey City. Durso had Irizarry, Looney and Garry Biase, a friend of Looney's, visit Red to discuss the specifics. On June 17, 1996, Irizarry, Looney and Biase drove to the property, poured gasoline "into the bearing wall," "let it soak in" and then set it on fire. App. at 2985. They then returned to Carmine's Restaurant. However, Durso later expressed his displeasure to Looney because once again the house had not burned completely down.

E. Several Murders.

1. Giancarlo Ravasi.

In 1991, Giancarlo Ravasi owed money to Ranieri and several others. At one point, Ravasi borrowed money from a third person to pay Ranieri. Around this time, Ravasi went to Italy. He returned in the summer of 1993 and moved to New York where he eventually obtained employment as a butcher at a supermarket in Brooklyn. App. at 1030.

In late summer of 1993, Irizarry told Soto that he had to "go do somebody because somebody was testifying in court against one of his friends." App. at 1150. He further informed Soto that the target was a butcher in Brooklyn. He also explained that he needed Soto's help because Soto was a known car thief "as well as a good driver," app. at 1151, who could steal a car and drive Irizarry to Brooklyn. In return for Soto's participation, Irizarry offered Soto $6,000 from his "take" and explained that it would be paid "upon completion" by the people Irizarry was working for. App. at 1153.

On September 24, 1993, at approximately 3:00 a.m., Soto picked up Irizarry in a stolen van and drove him to Brooklyn. When they arrived, they waited until they saw a man fitting Ravasi's description walking down the street with a woman toward the supermarket where Ravasi worked. As Ravasi turned the corner, Irizarry got out of the van, walked up behind Ravasi and fired one fatal shot to the back of Ravasi's head at close range. Irizarry then fled to Manhattan in the van. There, he and Soto abandoned the van, and took separate trains back to New Jersey.

2. Joseph Marmora and Antonio Pavone.

In 1993, Durso's cousin, Joseph Marmora, was spending a lot of time with Ranieri and other crime figures from Brooklyn, including Anthony Persichetti, who was also known as "Big Tony." Persichetti testified that Ranieri had introduced him to Marmora in 1992, and that Marmora wanted to get involved in criminal activities.

On December 30, 1993, Sammartino drove Irizarry to Marmora's apartment where Marmora let them in. Marmora's roomate, Pavone, was in the apartment. While Sammartino and Pavone stayed in the apartment, Irizarry and Marmora stepped out into the hallway to talk. "[A] couple of minutes later," Irizarry returned, holding Marmora "by the back of the collar or shirt." App. at 1448-49. Irizarry made Marmora kneel by pointing a gun at him as he told Sammartino to "find stuff to tie Joseph up with." App. at 1149-50. When Sammartino hesitated, Irizarry put the gun in his face and told him "to hold the gun and point it at Joe" while Irizarry retrieved "belts and ties" from the apartment. App. at 1450-51. Irizarry then tied Marmora's hands behind his back and his ankles, "pulled a knife," and stabbed Marmora numerous times. App. at 1452-53. Irizarry interrupted the stabbing long enough to walk over to the couch where Pavone was praying, and shoot Pavone in the head at close range.

In the meantime, Marmora somehow managed to break free and "attack[ ] Elvis," and they "began to wrestle around." App. at 1454. Marmora eventually "got off of Elvis and staggered out of the room," app. at 1454, only to be followed by Irizarry who shot him three times. Apparently not yet satisfied with the carnage he had thus far wreaked, Irizarry then slit Marmora's throat, leaving a wound that was ten inches long and an inch deep that severed Marmora's right jugular vein. The subsequent autopsy revealed a total of 48 stab and cutting wounds on Marmora's body.

Irizarry then returned to the apartment and told Sammartino to wait in the car. About "five minutes or so" later, Irizarry returned to the car "carrying an arm full of clothes," app. at 1456, and instructed Sammartino to drive to an industrial area of Brooklyn where Irizarry threw the clothes into a dumpster. App. at 1457.

Later that same night, Irizarry told Sammartino "that his people were connected, and that if [Sammartino] were to say anything" he "would end up dead no matter where" he went. App. at 1457-58. Irizarry also told Sammartino that if he did not say anything he could "make a lot of money," and he referred to an "old man" named Massimo. App. at 1458, 1459. Irizarry later told Sammartino that "the old man was very pleased with what had happened." App. at 1461.

Sammartino had borrowed the car he used to drive Irizarry to Marmora's apartment from Edward Pierce. After the murders of Marmora and Pavone, Irizarry was "very concerned... that Edward Pierce would say something to the police because... a lot of people in the neighborhood knew about what had happened." App. at 1461. Irizarry considered killing Pierce, but Sammartino rejected that idea. Sammartino did, however, agree to "get rid of the car... [i]n case [it contained traces] of any blood, [or other] evidence." App. at 1462.

On January 24, 1994, Sammartino and Pierce took the car to an industrial area of Newark and set it on fire. However, police arrived while it was burning and arrested both of them. They eventually pled guilty to arson, but they said nothing about the murders of Marmora and Pavone "[o]ut of fear." App. at 1465. Rather, Pierce told police that he burned his car for insurance proceeds.

Durso became upset when he was told of Marmora's death. McGuiness asked Durso: "How does it feel? You know, that Elvis supposedly is the one that took out Joey Marmora and that's your cousin?" App. at 3200. Durso replied, "How do you think the door got opened?" App. at 3201.

3. Kyle Veale.

In late 1993, Kyle Veale borrowed $3,000 from Irizarry, but failed to repay it. Irizarry told Bakhoury that the money had come from "[t]he guys he's connected with down at [Carmine's]," and asked him to talk to Veale about it. App. at 2088-90. Bakhoury knew that Durso was one of the "guys." App. at 2089. Bakhoury did speak with Veale about the loan and warned him not to "mess with Elvis." App. at 2090. Bakhoury subsequently told Irizarry that Veale had taken money out of a bank account that Bakhoury owned jointly with Veale. Irizarry responded by telling Bakhoury to "kick his ass." App. at 2091.

On January 1, 1994, Irizarry and Bakhoury picked up Veale at the latter's apartment and drove to a local high school to test some firearms and silencers. Bakhoury fired a.22 caliber firearm and Irizarry fired a.9 mm. As they tested the firearms, Irizarry came up behind Bakhoury, pressed a gun to the back of Bakhoury's neck and ordered him to shoot Veale. Bakhoury did as ordered, and continued shooting Veale until his bullets ran out — a total of five times. Irizarry then took the murder weapon and warned Bakhoury that his "prints [were] on it" so he better stay quiet. App. at 2105-06. Irizarry also told Bakhoury that he had to "learn to be tough because if Kyle gets over on [him], everybody is going to get over on [him]." App. at 2106-07.

4. Jose Ruiz.

Irizarry was spending a lot of time with Jose Ruiz in early 1997. Ruiz apparently enjoyed the attention resulting from his association with Irizarry. During this period, Irizarry recruited Ruiz to participate in an armed robbery. Ruiz, in turn, attempted to recruit two of his friends to help out, but they refused.

However, the relationship between Irizarry and Ruiz soured in February of 1997, after Irizarry told several people that he suspected that Ruiz had burglarized his apartment. This resulted in a change in Ruiz' attitude toward Irizarry, and Ruiz began trying to avoid Irizarry. According to Riuz' brother, Jose "didn't want to be next to [Irizarry]," "he was very scared about something." App. at 3481-82.

Ruiz left his house with Irizarry on February 28, 1997, and was never seen alive again. Ruiz' body was found the next day near a local high school, about two to three miles from where Veale had been shot. Ruiz had been fatally shot in the right ear at close range.

Irizarry later admitted killing Ruiz to Angelina Francolino and Elizabeth Griesi. Griesi was then Irizarry's girlfriend. Irizarry explained to Griesi: "No spic is going to rob me and I'm going to make an example." App. at 3736.

Irizarry's crime spree ended when he was arrested on May 25, 2000. He told one of the arresting officers: "[y]ou could run, but you can't hide." App. at 3932.

II. PROCEDURAL HISTORY

Following Irizarry's arrest, a grand jury returned a ninecount second superseding indictment against Durso, Irizarry and Bakhoury. Irizarry was charged in seven of the nine counts. Count One charged Durso, Irizarry and others with conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity and the collection of an unlawful debt, in violation of 18 U.S.C. § 1962(d); Count Two charged Durso and Irizarry and others with participating in the affairs of an enterprise through a pattern of racketeering activity and the collection of an unlawful debt, in violation of 18 U.S.C. § 1962(c) (the "RICO counts"); Count Three charged Durso, Irizarry, Bakhoury and others with conspiring to distribute and possess with the intent to distribute 500 grams or more of cocaine, contrary to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), in violation of 21 U.S.C. § 846; Count Four charged Durso and Irizarry with conspiring to collect debts by extortionate means, in violation of 18 U.S.C. § 894; Count Five charged Durso and Irizarry with conspiring to commit arson and committing arson affecting interstate commerce, in violation of 18 U.S.C. §§ 844(i) and (2); Count Six charged Durso, Irizarry and others with the murder of Jose Ruiz in aid of racketeering in violation of 18 U.S.C. §§ 1959 and 2; and Count Seven charged Irizarry with the use of a firearm in a crime of violence, i.e., the murder of Jose Ruiz, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2.

Following a trial on all of these charges, a jury returned a special verdict finding Irizarry guilty on all counts.*fn4 The jury found that the government had proven twelve of the thirteen racketeering acts charged in the two RICO counts. Irizarry was thereafter sentenced to life imprisonment on Counts One, Two and Six, concurrent prison terms of 240 months were imposed on Counts Four and Five; and a prison term of 480 months was imposed on Count three.

The court also imposed a consecutive sentence of 60 months on Count Seven. This appeal followed.

III. DISCUSSION

Irizarry asserts six claims of error. First, he argues that the government failed to prove the existence of a single ongoing enterprise and that it therefore improperly joined separate and unrelated crimes for trial. Second, that there was insufficient evidence to support the jury's finding that four murders charged as predicate acts were related to the affairs of the enterprise. Third, that the district court committed plain error by failing to instruct the jury that motive was a necessary element of the offenses charged in the indictment. Fourth, that the district court abused its discretion in admitting evidence of uncharged crimes to prove the RICO enterprise alleged in the indictment. Fifth, that the district court abused its discretion in denying a requested continuance. Lastly, he argues that the district court's failure to find prosecutorial misconduct was an abuse of discretion. We will address each assignment of error separately.

A. Failure to Prove a Single Enterprise Resulting in Improper Joinder.

The Racketeer Influenced and Corrupt Organizations Act makes it 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, the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962(c). RICO also criminalizes a conspiracy to do any of these unlawful acts. 18 U.S.C. § 1962(d). To establish a § 1962(c) RICO violation, the government must prove the following four elements: "(1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated in, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity." United States v. Console, 13 F.3d 641, 652-653 (3d Cir. 1993).

RICO defines an "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group or individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The Supreme Court has explained that an enterprise "is an entity separate and apart from the pattern of activity in which it engages," and that its existence is proven "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583 (1981). In United States v. Riccobene, 709 F.2d 214, 222 (3d Cir. 1983), overruled on other grounds by Griffin v. United States, 502 U.S. 46 (1991) we construed Turkette to require proof of each of the three sub-elements referred to by the Court in this passage, thus requiring the Government to prove: (1) that the enterprise is an ongoing organization with some sort of framework for making or carrying out decisions; (2) that the various associates function as a continuing unit; and (3) that the enterprise be separate and apart from the pattern of activity in which it engages.

United States v. Pelullo, 964 F.2d 193, 211 (3d Cir. 1992) (citing Riccobene, 709 F.2d at 221-224). "These three issues are questions of fact which, in the first instance, must be resolved by the jury." Riccobene, at 222. "[A]lthough the proof used to establish the existence of an enterprise and a pattern of racketeering may in particular cases coalesce, proof of a pattern of racketeering activity does not necessarily establish the existence of an enterprise." United States v. Console, 13 F.3d at 650 (citation and internal quotations omitted). Nevertheless, "in the appropriate case, the enterprise can be inferred from proof of the pattern." Id. at 650 n.5 (citation omitted).

Irizarry claims that the "government improperly joined for trial separate unrelated crimes since it failed to prove the existence of a single ongoing criminal enterprise." Irizarry's Br. at 31. He argues that the government "join[ed] in one trial a number of separate crimes allegedly committed by [him] over the course of many years and involving many different unrelated individuals." Id. at 43. He claims that, since the government failed to prove the existence of a single enterprise, "the joinder of separate crimes and coconspiracies into one criminal trial was inherently unfair," and a new trial is required on all of the counts of conviction. Id. at 44.

Irizarry's argument conflates two related but distinct legal claims. He conflates the issue of joinder under Fed. R. Crim. P. 8 with the issue of whether the government proved the existence of a single RICO enterprise. Nevertheless, in an overabundance of caution, we will address the claim he is actually raising as two separate claims, one based on Fed.R.Crim.P. 8, and one based on whether the government proved the existence of a single RICO enterprise.

(i). Improper Joinder.

To the extent that Irizarry is arguing that there was an improper joinder, his argument is without merit.*fn5 Federal Rule of Criminal Procedure 8 governs joinder of offenses and joinder of defendants. It states:

(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged — whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

(b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Fed.R.Crim.P. 8(a), (b). We make an "independent determination" as to whether or not there was an improper joinder of counts under Rule 8. United States v. Somers, 496 F.2d 723, 729 (3d Cir. 1974). If we determine that counts were improperly joined, we must undertake a harmless error analysis to see if prejudice resulted. United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992). Our inquiry into whether offenses or defendants were properly joined focuses upon the indictment, not upon the proof that was subsequently produced at trial. Id.

Irizarry's focus on Rule 8(b) at first appears misguided because Rule 8(b) authorizes joinder of defendants and Irizarry is actually challenging the joinder of allegedly unrelated offenses. Therefore, the plain language of Rule 8 suggests that he must rest his claim of misjoinder on Rule 8(a). However, we have held that Rule 8(a) "dealing with the joinder of offenses, applies only to prosecutions involving a single defendant" and that in a multi-defendant case such as this, "the tests for joinder of counts and defendants is merged in Rule 8(b)." United States v. Somers, 496 F.2d at 729 n.8. Moreover, most courts have held that Rule 8(b) applies exclusively to issues of joinder of multiple defendants and that Rule 8(a) applies only in cases involving a single defendant charged with multiple offenses. See United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir. 1991) (citing United States v. Kopituk, 690 F.2d 1289, 1312 (11th Cir. 1982). Therefore, Irizarry's reliance on Rule 8(b) is proper.*fn6

Count One, the RICO conspiracy count, charged that Durso, Irizarry and others, known and unknown, including members and associates of an international criminal organization known as, "La Cosa Nostra," constituted an enterprise whose principal purpose was to earn money through the commission of various crimes including murder, arson, robbery, cocaine distribution and the extortionate collection of "debts." Count One also charged that Durso, Irizarry and others conspired to commit at least two of thirteen racketeering predicates described in Count Two. Count One also described a cocaine distribution trade headed by Durso in which Irizarry was responsible for purchasing cocaine and delivering it to Durso and in which Irizarry conspired with Bakhoury to sell a quantity of cocaine.

Count Two, the RICO substantive count, charged that Irizarry, being employed by and associated with the enterprise, participated in the affairs of the enterprise through a pattern of racketeering activity which consisted of: the conspiracy, attempt and murder of Giancarlo Ravasi (racketeering act one); the murder of Joseph Marmora (racketeering act two); the murder of Antonio Pavone (racketeering act three); the murder of Kyle Veale (racketeering act four); conspiracy to commit arson and the arson of a vehicle (racketeering act five); conspiracy to commit armed robbery of an armored car (racketeering act six); extortionate debt collection (racketeering act seven); attempted robbery and robbery of a delicatessen (racketeering act eight); cocaine distribution conspiracy (racketeering act nine); conspiracy to collect debts by means of extortion (racketeering act ten); conspiracy to commit arson and arson of a residence located at 214 Belvidere Avenue, Jersey City (racketeering act eleven); conspiracy to commit arson and arson of a residence located at 293 Sherman Avenue, Jersey City (racketeering act twelve); and the murder of Jose Ruiz (racketeering act thirteen).

Count Three charged Durso, Irizarry and Bakhoury with conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine. Count Four charged Durso and Irizarry with conspiracy to collect debts by extortionate means. Count Five charged Durso and Irizarry with conspiracy to commit arson and arson affecting interstate commerce. Count Six charged Durso and Irizarry with the murder of Jose Ruiz in aid of racketeering. Count Seven charged Irizarry with the use of a firearm in a crime of violence, i.e., the murder of Ruiz.

This case is unique in that Irizarry, a defendant in a multiple defendant RICO prosecution, is challenging the joinder of offenses and not his joinder with other RICO defendants. Nevertheless, we believe that the analysis in cases where we have upheld the joinder of RICO defendants is helpful to our inquiry. For example, in Eufrasio, three defendants, Santo Idone, Mario Eufrasio and Gary Iacona were found guilty of RICO violations (both substantive and conspiracy), attempted extortion, and illegal gambling. 935 F.2d at 557. Eufrasio's and Iacona's RICO liability was predicated on attempted extortion, illegal video poker machine gambling and collecting unlawful debts. However, Idone's RICO liability was predicated on attempted extortion and on a separate murder conspiracy that did not involve Eufrasio or Iacona. Id. at 558.

Eufrasio and Iacona argued that their joinder as defendants with Idone violated Rule 8(b) because they were not connected with, or even aware of, the murder conspiracy predicate charged against Idone. Their joinder with him allegedly prejudiced them because the murder charged against Idone "infected the entire trial with evidence of uncharged Mafia crimes and the murder conspiracy itself." Id. at 566. They also alleged that the joinder "exposed the jury to evidence of numerous mob murders and attempted murders related to [Idone's] murder conspiracy and [a]... mob war" that had nothing to do with them. Id. at 567.

In rejecting this claim, we noted:

Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial. The rule permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with a commonly charged RICO enterprise or conspiracy. United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir. 1982), cert. denied, 460 U.S. 1092 (1983). "[J]oinder... of a conspiracy count and substantive counts arising out of the conspiracy [is permitted], since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan." United States v. Somers, 496 F.2d 723, 729-730 (3d Cir.) (emphasis in Somers, quoting Wright and Miller, Federal Practice and Procedure § 144), cert. denied, 419 U.S. 832 (1974).

935 F.2d at 567. Moreover, we agreed with the view of the Court of Appeals for the Second Circuit announced in United States v. Friedman, 854 F.2d 561 (2nd Cir. 1988).*fn7

There, the court held that a RICO conspiracy charge provides the required link to which we referred in United States v. ...


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