709 F.

2d 214
13 Fed. R. Evid. Serv. 564

UNITED STATES of America

v.
Mario RICCOBENE, Appellant in No. 82-1399
v.
Joseph CIANCAGLINI, Appellant in No. 82-1410
v.
Charles WARRINGTON, Appellant in No. 82-1411
v.
Pasquale SPIRITO, Appellant in No. 82-1412
v.
Joseph BONGIOVANNI, Appellant in No. 82-1413
v.
Harry RICCOBENE, Appellant in No. 82-1414.
Nos. 82-1399, 82-1410 to 82-1414.

United States Court of Appeals,

Third Circuit.
Argued March 16, 1983.
Decided May 20, 1983.
As Amended June 13, 1983.
Rehearing Denied June 16, 1983.

Peter F. Vaira, Jr., U.S. Atty., E.D. Pa., Joel M. Friedman, Albert J.
Wicks, Sp. Attys., Dept. of Justice, Philadelphia, Pa., William C. Bryson
(argued), Dept. of Justice, Washington, D.C., for appellee.
Carmen C. Nasuti (argued), Nasuti & Miller, Philadelphia, Pa., for Mario
Riccobene.
Robert F. Simone (argued), Philadelphia, Pa., for Jos. Ciancaglini.
Oscar N. Gaskins, Gaskins & McCaskill, Philadelphia, Pa., for Chas.
Warrington.

Bonnie B. Leadbetter (argued), Philadelphia, Pa., for Pasquale Spirito.

Alan B. Epstein (argued), Jablon, Epstein & Wolf, Philadelphia, Pa., for
Jos. Bongiovanni.
Mario J. D'Alfonso, Camden, N.J., for Harry Riccobene.
Before ADAMS and HUNTER, Circuit Judges and ACKERMAN,
District Judge.*
OPINION OF THE COURT
ADAMS, Circuit Judge.

The appellants in this case challenge their convictions under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq.
("RICO"), and the federal gambling statute, 18 U.S.C. Sec. 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.

I.
2

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
3

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.1
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.2

B. The Activities
7

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 coconspirators. There is no single predicate offense in which all the appellants
participated together.3

1. Chestnut Hill Lincoln Mercury Dealership

8

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.4
2. The Numbers Operations

10

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.

11

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 offices 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.5 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.
12

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."6 This operation formed the basis
of one predicate offense for Ciancaglini and Warrington.
3. Riccobenes' Loan Business

13

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.7

14

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
15

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.

16

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 it was also charged as a substantive
violation of the federal gambling law, 18 U.S.C. Sec. 1955, in Count II of the
indictment.
5. The Andalusia Craps Game

17

According to the government's expert, Warrington and Ippolito had a financial

interest in, and conducted, a craps game in Andalusia, Pennsylvania, which
operated in the afternoons and early evenings from 1976 to 1978. The game ran
for alternating 5-week periods with a game in Bristol, Pennsylvania run by
"guys from Trenton." The Bristol game was raided by the FBI on June 3, 1978.
In subsequent conversations, Warrington made clear that he nonetheless
intended to reopen the Andalusia Game, stating "They're [the FBI] not gonna

stop my f______ living." The operation of this game formed the basis for one
of the predicate offenses charged against Warrington.
6. The Craps Game Scam
18

Warrington and Sindone and three other men set up a phony craps game in
New Jersey to cheat a player out of a substantial sum of money. The scam was
successful and the man lost $4500. Warrington, in arranging the scam, stated in
an intercepted conversation that Bruno had approved the scam and would
intervene if the New York group demanded a share of the profits. This is a
reference to an arrangement between the Philadelphia and New York
organizations that all New Jersey gambling would be split "50-50." Since the
scam was a false, rather than a real operation, Warrington believed that New
York was not entitled to its "cut."

19

In the course of setting up the scam, Warrington placed two recorded phone
calls from his office in Pennsylvania to the victim in New Jersey. This wire
fraud was one of the predicate offenses charged against Warrington.

C. Procedural History
20

The defendants were indicted by a federal grand jury on February 19, 1981.
Count I of the indictment set forth the RICO conspiracy, in which all the
defendants were charged. It alleged eight predicate offenses and forty-one overt
acts committed in furtherance of the RICO conspiracy. Count II charged
Ciancaglini and Warrington with violating the federal gambling statute, 18
U.S.C. Sec. 1955, by conducting the Reed Street craps game. Count III charged
Ciancaglini, the Riccobenes and Bongiovanni with violating the federal
gambling laws by conducting their 1977 numbers operation.

21

Trial was before a jury, and lasted approximately one month, from April 13 to
May 10, 1982. The government's case consisted of lay and expert witnesses and
tapes of intercepted conversations among the co-conspirators. Appellants did
not put on a defense. They were all convicted on Count I. Warrington was
convicted on Count II, but Ciancaglini was acquitted of this charge. On Count
III, Ciancaglini, the Riccobenes and Bongiovanni were all found guilty. After
sentencing, each appellant filed a timely notice of appeal.

II.
22

The Racketeer Influenced and Corrupt Organizations Act was enacted "to seek

the eradication of organized crime in the United States by strengthening the

legal tools in the evidence-gathering process, by establishing new penal
prohibitions, and by providing enhanced sanctions and new remedies to deal
with the unlawful activities of those engaged in organized crime." Pub.L. No.
91-452, 84 Stat. 922, 923 (1970). See Blakey, "The RICO Civil Fraud Action in
Context," 58 N.D.L.Rev. 237, 249-80 (1982) (examining the legislative history
of the statute in considerable detail). RICO makes it a federal crime for
individuals "employed by or associated with any enterprise ... to conduct or
participate, directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful debt." 18
U.S.C. Sec. 1962(c). Section 1962(d) provides that it is unlawful to conspire to
violate Section 1962(c).8 To establish an "enterprise" conspiracy, the
government must prove beyond a reasonable doubt that an "enterprise" did in
fact exist, and that the individual defendants knowingly agreed to participate in
the "enterprise" through a pattern of racketeering. The appellants in the present
case were convicted of violating Section 1962(d) by conspiring to violate
Section 1962(c). They argue that the government failed to satisfy its burden of
proving such an enterprise conspiracy and that their convictions on Count I
must, therefore, be overturned. We conclude that, contrary to the appellants'
assertions, the evidence was sufficient to demonstrate that an organization
existed which satisfies the requirements for an "enterprise," and that all the
members of the conspiracy knowingly agreed to participate in or conduct that
enterprise through a pattern of racketeering.
A. Existence of an Enterprise
23

"Enterprise," according to the statute, "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." 18 U.S.C. Sec.
1961(4). The Supreme Court has recently held that a completely illegal
organization may be an enterprise for RICO purposes. United States v.
Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also United
States v. Provenzano, 620 F.2d 985, 992-93 (3d Cir.), cert. denied, 449 U.S.
899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). The Turkette Court recognized that
RICO's primary purpose is to "address the infiltration of legitimate business by
organized crime." 452 U.S. at 591, 101 S.Ct. at 2532, but determined that it was
not inconsistent with this purpose to read the plain language of the statute to
punish the activities of illegal organizations even before that infiltration
occurred. This "preventive" function enables federal law enforcement officials
"to deal with the problem at its very source." 452 U.S. at 591, 101 S.Ct. at
2532, 2533.

24

In reaching its conclusion, the Supreme Court was not unmindful of the dangers

24

In reaching its conclusion, the Supreme Court was not unmindful of the dangers
of its interpretation. 452 U.S. at 582-83, 101 S.Ct. at 2528-29. Both judges and
commentators had raised the concern that the concept of "illegal enterprise"
could be construed quite broadly. Legal scholars had concluded that, without
further refinement of the term, the statute could be extended to situations far
removed from those actually contemplated by Congress, and that federal
prosecutors could use the law to invoke an additional penalty whenever they
had a case involving the commission of two offenses that, coincidentally, were
among those listed as "racketeering activities." See United States v. Anderson,
626 F.2d 1358 (8th Cir.1980), cert. denied 450 U.S. 912, 101 S.Ct. 1351, 67
L.Ed.2d 336 (1981); United States v. Sutton, 605 F.2d 260 (6th Cir.1979) rev'd
en banc, 642 F.2d 1001 (6th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct.
3144, 69 L.Ed.2d 995 (1981); Bradley, Racketeers, Congress, and the Courts:
An Analysis of RICO, 65 Iowa L.Rev. 837 (1980); Tarlow, RICO: The New
Darling of the Prosecutor's Nursery, 49 Fordham L.Rev. 165 (1980).

25

To avoid these dangers, the Turkette Court provided a definition of "illegal

enterprise" for RICO purposes. It set forth the elements necessary to establish
the existence of such an enterprise: "evidence of an ongoing organization,
formal or informal" and "evidence that the various associates function as a
continuing unit." 452 U.S. at 583, 101 S.Ct. at 2528. In addition, the enterprise
must be shown to have an existence "separate and apart from the pattern of
activity in which it engages." 452 U.S. at 583, 101 S.Ct. at 2528. 9 The Court
stated that "the proof used to establish these separate elements may in particular
cases coalesce." 452 U.S. at 583, 101 S.Ct. at 2528.

26

Because the issues of ongoing organization, continuing membership and

separate existence are questions of fact, they must be resolved in the first
instance by the jury. The scope of our review of factual determinations is, of
course, quite limited. We must sustain the jury's verdict "if there is substantial
evidence, taking the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680
(1942) (citations omitted). We turn now to the facts of the case at hand to
consider whether, under the Glasser standard, the evidence is sufficient to
sustain the jury's finding that an enterprise did exist.

27

Each of the elements enumerated by the Supreme Court describes a separate

aspect of the life of the enterprise. The "ongoing organization" requirement
relates to the superstructure or framework of the group. To satisfy this element,
the government must show that some sort of structure exists within the group
for the making of decisions, whether it be hierarchical or consensual. There
must be some mechanism for controlling and directing the affairs of the group

on an on-going, rather than an ad hoc, basis. This does not mean that every
decision must be made by the same person, or that authority may not be
delegated.
28

In the situation before us, there is substantial evidence showing that such a
framework did exist. The organization here was a hierarchy presided over by
Bruno, with an inner group of advisors and supervisors, and an undisclosed
number of lower level associates operating the illegal businesses. Several
intercepted conversations illustrate this structure. On November 4, 1977, four
of the co-conspirators, Testa, Narducci, Scarfo, and Harry Riccobene, discussed
the selection of a new "consigliere," or advisor, for the group. 10 From their
conversation, it is apparent that there are regularized roles in the organization,
and that the various positions provide their holders with different rights and
privileges, such as voting in these elections.

29

Another example of the structure of the group is provided by two conversations

between Ciancaglini and Harry Riccobene concerning the numbers operation.
Riccobene complained about the "cut numbers" problem,11 and the need for a
uniform policy among the operators of numbers games. Ciancaglini promised
to take the problem to Sindone, who apparently supervised the games. On his
return visit, Ciancaglini reported that he had explained the situation to Sindone,
but because of the nature of the matter, Sindone might have to take it to Bruno
to be resolved. As with the November 4th conversation, these discussions
demonstrate the different roles and responsibilities at various levels of the
organization. The evidence is sufficient, therefore, to show an organization with
a leader and a group of supervisors, each running his own operations with "his
own people," but coordinated with the operations of other supervisors to
provide greater profits and fewer conflicts.

30

The second necessary element for an enterprise under RICO is that "the various
associates function as a continuing unit." Turkette, 452 U.S. at 583, 101 S.Ct. at
2528. This does not mean that individuals cannot leave the group or that new
members cannot join at a later time. It does require, however, that each person
perform a role in the group consistent with the organizational structure
established by the first element and which furthers the activities of the
organization. The evidence presented at trial is adequate to establish that the
appellants did occupy continuing positions within the group.12

31

Harry Riccobene, in addition to his position as a member of the core group,

conducted two individual illegal businesses under the supervision and
protection of the organization--a numbers game and a loansharking operation.
The evidence also demonstrates that his brother Mario was his partner and that

Bongiovanni worked for them. This conduct is consonant with the structure
shown under the first element, and the activities of these three in operating the
illegal businesses further the enterprise. Harry Riccobene claims to be lending
out "their money," a veiled reference to members of the core group, in the loan
business, and the numbers game conducted by the Riccobenes, with
Bongiovanni's assistance, appears to be one of a series of games coordinated by
the core group.13
32

Ciancaglini's role, as indicated by the evidence, was to act as an intermediary

between at least one member of the core group, Frank Sindone, and the
operations which Sindone oversaw. He also served as a coordinator and money
collector for the enterprise's numbers operations. One of the games Ciancaglini
supervised was conducted by Warrington. Warrington also conducted two
craps games, one at Reed Street and one in Andalusia, which, according to
intercepted conversations and expert testimony, were invested in and monitored
by the core group. As this brief summary indicates, the actions of Ciancaglini
and Warrington are consistent with the organizational structure of the group
and serve to benefit the enterprise.

33

The third and final element in establishing the enterprise is that the organization
must be "an entity separate and apart from the pattern of activity in which it
engages." Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. As we understand this
last requirement, it is not necessary to show that the enterprise has some
function wholly unrelated to the racketeering activity, but rather that it has an
existence beyond that which is necessary merely to commit each of the acts
charged as predicate racketeering offenses. The function of overseeing and
coordinating the commission of several different predicate offenses and other
activities on an on-going basis is adequate to satisfy the separate existence
requirement.14 As our discussion of the organization in this case has already
shown, there is sufficient evidence to find that the enterprise served a
clearinghouse and coordination function above and beyond that necessary to
carry out any single one of the racketeering activities charged against the
individual defendants.

34

The evidence adduced is adequate to show the existence of each of the three
elements identified by the Supreme Court as necessary to establish an
enterprise.

B. Agreement to Participate
35

Establishing that an enterprise exists, however, does not end the inquiry in a
RICO conspiracy case. In addition, the government must show agreement: that

each participant knowingly associated himself with the larger enterprise. Some
of the appellants contend that the evidence does not establish a single
conspiracy, but that at best it demonstrates a series of unrelated agreements,
each occurring in connection with one or more of the predicate offenses.
Therefore, they argue that there was a variance between the offense charged in
the indictment and the proof offered at trial which prejudiced substantial rights
of the defendants. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239,
90 L.Ed. 1557 (1946); United States v. Camiel, 689 F.2d 31 (1982). Viewing
the evidence in a light most favorable to the government, we conclude that
there was no variance from the indictment and that there was sufficient
evidence from which the jury could have found that each of the appellants
agreed to participate in a single enterprise conspiracy.
36

The issue of what constitutes a conspiracy under RICO is a matter of first

impression in this Circuit but has been actively debated in the Fifth and other
Circuits. See United States v. Brooklier, 685 F.2d 1208 (9th Cir.1982), cert.
denied, --- U.S. ----, 103 S.Ct. 1194, 75 L.Ed.2d 439 (U.S.1983); United States
v. Lemm, 680 F.2d 1193 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 739, 74
L.Ed.2d 960 (1982); United States v. Sutherland, 656 F.2d 1181 (5th Cir.1981),
cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982); United
States v. Lee Stoller Enterprises, Inc., 652 F.2d 1313 (7th Cir.), cert. denied,
454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 615 (1981); United States v. Elliott,
571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d
344 (1978); see also Blakey and Goldstock, 'On the Waterfront': RICO and
Labor Racketeering, 17 Am.Crim.L.Rev. 341, 360-62 (1980). The Fifth Circuit
has determined that in enacting section 1962(d) Congress did not radically alter
traditional conspiracy doctrine except to the extent that it proposed a
dramatically new conspiratorial objective. An agreement merely to commit the
predicate offenses would not be sufficient to support a RICO conspiracy. Nor is
it sufficient if the defendants merely participate in the same enterprise. See
Sutherland, supra, 656 F.2d at 1192 (explaining Elliott ). This is so because,
under RICO, it is an agreement "to conduct or participate ... in the conduct of
[an] enterprise's activities" through the commission of predicate offenses that is
prohibited, not an agreement to commit a pattern of racketeering activity alone.
As stated in Blakey and Goldstock, supra at 361: "[T]he key element is proof
that the various crimes were performed in order to assist the enterprise's
involvement in corrupt endeavors." Consequently, we agree with the Fifth
Circuit that Congress intended that "a series of agreements that under pre-RICO
law would constitute multiple conspiracies could under RICO be tried as a
single 'enterprise' conspiracy" if the defendants have agreed to commit a
substantive RICO offense. Sutherland, supra, 656 F.2d at 1192.

37

Proof of agreement in a RICO proceeding may be established by circumstantial

evidence to the same extent permitted in traditional conspiracy cases. It is wellestablished that one conspirator need not know the identities of all his coconspirators, nor be aware of all the details of the conspiracy in order to be
found to have agreed to participate in it. Blumenthal v. United States, 332 U.S.
539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Simmons, 679 F.2d
1042, 1050 (3d Cir.1982); United States v. Boyd, 595 F.2d 120 (3d Cir.1978).
Our review of the record convinces us that, viewing the evidence in the light
most favorable to the government, there was sufficient evidence from which the
jury could have found that each of the appellants understood the scope of the
enterprise and knowingly agreed to further its affairs through the commission
of various offenses. Having established that a jury could properly have
concluded that a single enterprise existed which supervised and coordinated a
series of criminal activities, such as gambling and loan-sharking, it is not
difficult for us to reach the conclusion that the jury could have found that each
appellant must necessarily have known that the individual operations were
supervised or financed, at least in part, through the organizational infrastructure
by members of the core group.

38

There can be no doubt that Harry Riccobene was fully aware of the extent of the
enterprise with which he was associated. He was a member of the core group,
and his statements in intercepted conversations make clear that he had been an
active member for at least 40 years. For example, in a conversation with
Bongiovanni, he talked about his participation in a 1931 "war" between various
factions of the Cosa Nostra. Riccobene then went on to explain why he chose
not to become "the boss," and why Bruno was still in power, even though "he
don't have the capability."

39

Evidence of Bongiovanni's knowledge of the scope of the enterprise comes

primarily from his discussions with Harry Riccobene. Although Bongiovanni
contends that these conversations concerning the group's past indicate merely
that he was an amateur historian, the jury could have concluded he was aware
of the present implications of that history. In discussing Bruno, for example,
both Riccobene and Bongiovanni switch from past to present tense, and then
they speak of the proper degree of respect that should be shown to "somebody
... in that position." In addition, Riccobene told Bongiovanni at another time
that "It's their money I lend out. It ain't my money." In other conversations, both
men referred to "those guys from Tenth Street."15 It also appears that
Bongiovanni had some contact with Sindone. After the FBI raid at the talent
agency, Sindone told Harry Riccobene that Bongiovanni had told him that the
agents had mentioned Sindone's name during the raid. It is consistent with the
structure of the enterprise that Bongiovanni would have had a relationship with

Sindone. Sindone, through Ciancaglini, appears to have supervised the local

numbers games, including the Riccobene operation at which Bongiovanni was
employed. From all this, the jury could have concluded that Bongiovanni
joined the enterprise knowing that its activities extended far beyond the
particular gambling and loansharking operations at which he was employed,
even though he might not have been aware of all of the organization's criminal
acts or other participants.
40

Direct evidence demonstrating Mario Riccobene's knowledge of the scope of

the conspiracy is more limited. Mario and Harry Riccobene were clearly
partners in the illegal numbers and loansharking businesses. They apparently
shared the same offices, which were visited with some regularity by higherranking members of the enterprise. Mario Riccobene obviously knew these
men, serving on occasion as Bruno's driver when Bruno visited other members
of the enterprise. He was at Bruno's home at the time of a meeting between coconspirators Bruno, Testa, Simone and Sindone. Also, after the FBI raided the
talent agency, Mario and Harry Riccobene discussed how the federal agents had
found out about their operations. Mario stated that "it's just gotta be phone
conversations or eavesdropping.... Can't be 10th Street." (emphasis added). A
reasonable inference from this last statement is that Mario Riccobene knew of
the connection between his own operation and the core group who met at
Frank's Cabana Steaks. From all of the evidence presented, including the close
personal and business relationship between Mario Riccobene and his halfbrother Harry, one of the central figures in the enterprise, the jury could have
found that Mario knowingly agreed to participate in the enterprise.

41

There was overwhelming evidence to show that Ciancaglini was aware of the
scope of the enterprise. In addition to other activities, he supervised the
numbers operations for Sindone, and served as money collector for the
numbers game conducted by members of the core group.

42

There is sufficient evidence from which the jury could have found that
Warrington knowingly participated in the enterprise as well. During the craps
game scam, he indicated his knowledge of the profit-sharing arrangement
between Philadelphia and New York, and that Bruno had told him that, since it
was a scam, the 50% rule did not apply. In addition, Warrington was concerned
that Simone, a member of the core group, would want a share of the profits and
that, in order to avoid trouble, Sindone would order Warrington to give Simone
a cut. Sindone was one of the members of the core group who shared with
Warrington a financial interest in the Reed Street craps game which Warrington
operated. Warrington's demonstrated knowledge of the core group and his
statements as to their supervision of his activities provided the jury with

sufficient evidence from which to conclude that he was aware of the scope of
the conspiracy with which he was associated.
43

Our review of the evidence has shown that a single enterprise did exist and that
each appellant was a knowing member of the conspiracy "to conduct or
participate ... in the conduct of such enterprise's affairs...." 18 U.S.C. Sec.
1962(c). Appellants put forth two subsidiary arguments under their "multiple
conspiracy" claims which we must address before we turn to their remaining
contentions. First, at least some of them argue that there was insufficient
independent evidence of their participation in the conspiracy to justify the
admission of hearsay statements under Federal Rule of Evidence 801(d)(2)(E)
by alleged co-conspirators as evidence against them. As the review of the
evidence against the appellants has demonstrated, however, it was their own
statements that were usually the most incriminating, and certainly provided
sufficient evidence of the likelihood of a single conspiracy to justify the
admission of their co-conspirators' statements. Second, each asserts that he was
prejudiced by the introduction of masses of evidence of predicate offenses and
overt acts which were in no way related to him. Inasmuch as we have held that
a single conspiracy has been shown to have existed, there is no unfair prejudice
here because all of the evidence went to proving some part of the conspiracy in
which each of them participated.

III.
44

In order to obtain a conviction under RICO, the government must show not
only that a defendant participated in the operation of a single enterprise, but also
that he did so "through a pattern of racketeering activity or collection of
unlawful debt." 18 U.S.C. Sec. 1962(c). A pattern is established by proof that
the defendant committed two or more predicate offenses--specified illegal acts,
prohibited by either state or federal law--which are often associated with
organized crime.16 In the present case four of the appellants were charged with
committing more than the minimum number of two predicate offenses.17 Three
of the appellants, Harry Riccobene, Warrington and Ciancaglini, argue that the
jury could not properly have found them to have committed all of the predicate
offenses with which they were charged, and that their RICO convictions must
therefore be reversed.

45

Under United States v. Brown, 583 F.2d 659 (3d Cir.1978), cert. denied, 440
U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979), if a defendant is charged with
multiple predicate offenses, the evidence must be sufficient to prove all of them
if the court cannot determine which specific offenses the jury relied upon in
reaching its verdict. See also United States v. Tarnopol, 561 F.2d 466 (3d

Cir.1977); United States v. Dansker, 537 F.2d 40 (3d Cir.1976), cert. denied,
429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1979). In Brown, the jury was
presented with four acts set forth as predicate offenses in a RICO conspiracy;
each act also formed the basis for a separate substantive offense charged
against the defendant.18 The jury convicted on all counts. On appeal, this Court
overturned the convictions on two of the substantive counts, finding that the
conduct charged in those counts did not, as a matter of law, constitute mail
fraud. Then, because the Court had no way of ascertaining which of the
substantive offenses the jury had relied upon to satisfy the requirement of two
predicate racketeering acts for the RICO conspiracy, it overturned the
conviction on that count as well, despite the fact that two of the potential
predicate offenses still constituted valid bases for the verdict.
46

The government has argued that, regardless of the merits of their claims, the
appellants here have waived their right to object on the Brown issue. At trial,
the government requested that the court submit special interrogatories to the
jury if it returned a verdict of guilty. The interrogatories were designed to
establish which of the predicate offenses the jury had relied on to convict the
defendants of the RICO offense. Because the defendants objected, the district
court did not submit the interrogatories after the general verdict was returned.
The government analogizes the objection to "invited error," a doctrine which
prohibits a defendant from seeking appellate review of "alleged errors invited
or induced by himself," U.S. v. Lewis, 524 F.2d 991, 992 (5th Cir.1975), cert.
denied, 425 U.S. 938, 96 S.Ct. 1673, 48 L.Ed.2d 180 (1976). If the defendants
had allowed the special interrogatories, then there would have been no Brown
problem presented on appeal.

47

This argument by the government would appear to overlook one critical

element. The government does not contend that the district court erred in
refusing the request for interrogatories. It is within the discretion of the district
court to permit special interrogatories and even where the opposing party does
not object, the court is not required to submit special questions to the jury.
Since the government does not argue that it was an abuse of discretion for the
district court to refuse the government's request, we will not impose upon the
defendants the harsh penalty of waiver merely for requesting that the district
court exercise its discretion in a manner contrary to the government's
preferences.19

48

Brown does not require that we reverse the convictions of any defendant when
there is sufficient evidence from which the jury could have concluded that he
did commit every predicate offense charged against him. Nor does it require
reversal when the reviewing court can determine that the jury did not rely on

the challenged predicate offense when reaching its verdict on the RICO charge.
With these limits on the Brown doctrine in mind, we turn to a consideration of
the specific claims made by each appellant.
49

Harry Riccobene was charged with three predicate offenses: extortionate credit,
unlawful debt and gambling (numbers operation). He discussed his
involvement in each of these activities in conversations that were intercepted.
Viewing these statements in the light most favorable to the government, the
jury could have found him guilty beyond a reasonable doubt of the predicate
offenses.

50

There were four predicate offenses charged against Warrington: wire fraud and
three gambling charges arising from the Reed Street craps game, the Andalusia
craps game and the 1978 numbers operation. The wire fraud is supported by a
series of intercepted conversations and interstate telephone calls. As to the
gambling offenses, there are intercepted conversations in which Warrington
discusses his involvement in all of the games. He was at the Reed Street
location when it was raided by the FBI, and an FBI expert testified that, from
the intercepted conversations it appeared that Warrington, along with four coconspirators, had an on-going financial interest in the game. As to the numbers
operation, in addition to intercepting conversations, the FBI searched
Warrington's home and his business, the C. Warren Check Cashing Agency. At
the home they found several envelopes of cash and a notebook which a
government expert testified contained the records for the numbers business.
From all this evidence, the jury could have found beyond a reasonable doubt
that Warrington had committed all four of the predicate offenses with which he
was charged.

51

Ciancaglini was accused of the following predicate offenses: extortionate credit

transactions; collection of unlawful debt; mail fraud; and illegal gambling
charges arising both from the numbers operations and from supervising the
Reed Street craps game. There are intercepted conversations involving mail
fraud and numbers charges from which the jury could have concluded beyond a
reasonable doubt that Ciancaglini had committed those offenses.

52

Both the extortionate credit and unlawful debt accusations arose from
Ciancaglini's participation in the collection of the illegal loan made by Brown
to Wilmerton. Although Ciancaglini never said anything when he accompanied
Brown, he did admit in an intercepted conversation that he had been there to
assist in the collection. He was present on one occasion when physical force
was used. His later conversations with Harry Riccobene indicate that he knew
that the debt was unlawful and that Brown was a loanshark. Thus, the evidence

was sufficient as to these charges as well.

53

Ciancaglini raises a separate challenge to the jury's possible finding that he was
involved in the collection of an unlawful debt. He claims that the district court
gave inconsistent instructions to the jury on the issue of collection of an
unlawful debt. At one point during the charge, the court stated that the
collection of an unlawful debt could not serve as a predicate offense if more
than five years old and at another point told the jury it could consider the
collection of the Wilmerton debt, which seems to have occurred more than five
years earlier. Ciancaglini did not, however, object to the jury instructions or
request that the court withdraw the Wilmerton loan charge from consideration
by the jury because it was time-barred. He also did not raise the issue in his
motion for judgment of acquittal. Consequently, he cannot now raise this issue.
See Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976);
Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672 (3d Cir.1980); Newark
Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir.1976).

54

The final predicate offense charged against Ciancaglini was participation in the
running of the Reed Street craps game. This accusation also formed the basis
for the charge in Count II of the indictment--violation of the federal gambling
statute (18 U.S.C. Sec. 1955). Since the jury acquitted Ciancaglini on Count II,
he now argues that the acquittal establishes that reliance on the Reed Street
game as a predicate offense would have been improper. Because the jury
returned only a general verdict of guilty on the RICO conspiracy charge, there
is no way to determine if it did in fact bottom its verdict on the Reed Street
activities. Accordingly, Ciancaglini asks that we reverse his RICO conviction
on the basis of the Brown doctrine.

55

This case, however, differs from Brown in a very significant respect. In Brown,
the jury had returned a verdict of guilty on both the RICO charge and the
substantive crimes on which the RICO charge was based. When this Court
reversed two of the substantive convictions, it had to strike down the RICO
conviction as well, because the guilty verdicts on the substantive charges
indicated that the jury might have relied on those charges as predicate offenses
when considering the RICO claim.

56

By contrast, the jury in the present case acquitted Ciancaglini of the substantive
crime of conducting an illegal gambling operation, which is prohibited by 18
U.S.C. Sec. 1955. The predicate offense alleged in connection with the Reed
Street game is that Ciancaglini "would and did" violate 18 U.S.C. Sec. 1955.
Thus, the verdict of acquittal on Count II serves a function analogous to that of
a special interrogatory. Inasmuch as the jury stated affirmatively that it did not

believe beyond a reasonable doubt that Ciancaglini had violated the federal
gambling law, there is no reason for this Court to assume now that the jury
returned inconsistent verdicts by relying on that charge as a basis for the RICO
verdict. For this reason, Brown does not require that the conspiracy conviction
here be reversed.
IV.
57

Several of the appellants raise additional challenges to the sufficiency of the

evidence presented in connection with the various charges against them.
Bongiovanni argues first that he never knew what the interest rates were on the
loans he was collecting, and so did not know that the rates were in violation of
the usury laws. The stark facts are, however, that Bongiovanni discussed with
Harry Riccobene his collections on the Abbott loan, that Abbott had paid $800
on a $1000 debt, that he still owed $400, and that, according to Bongiovanni,
Abbott was paying $100 weekly. Inasmuch as Bongiovanni was aware of these
figures, the jury could properly have inferred that he knew the interest rate
charged, regardless of whether he actually made the necessary calculations.

58

Bongiovanni's second challenge is to the sufficiency of the evidence as to

Count III, which related to his participation in the 1977 numbers operation. The
evidence shows that he was an employee of the game--taking bets from people-and thus may be considered to have "conducted" a gambling business as is
required by Section 1955. This Court has held explicitly that a "street runner" is
covered by the Act. United States v. Riehl, 460 F.2d 454, 459 (3d Cir.1972).

59

Warrington argues that the evidence does not establish his participation in the
Reed Street game, the offense for which he was convicted in Count II. The
evidence is adequate to establish Warrington's participation in the Reed Street
game.20 See Part IB4, supra.

60

Ciancaglini contends that there was insufficient evidence linking him to the
operation of the Riccobenes' numbers game, the offense for which he was
convicted in Count III. He acknowledges that he conducted a numbers game at
the same time the Riccobenes' game operated, but claims that the evidence does
not show that it was in fact the Riccobenes' game that he supervised.
Ciancaglini's discussions with Harry Riccobene concerning the "cut numbers"
policy, along with the other statements present in the record, are sufficient to
warrant a jury finding that it was the Riccobene game with which Ciancaglini
was involved.

V.

61

Appellants' next series of contentions involve the trial itself. They allege that
the district court committed various errors warranting either the grant of a new
trial or an acquittal. Appellants claim that the district court erred in permitting
FBI Special Agent James Nelson to testify as an expert to define certain terms
used on the tapes, such as "La Cosa Nostra," "capi," and "consigliere." Over the
defendants' objections the testimony was admitted. The court limited the
examination to a definition of the terms involved, and instructed the jury that
the testimony was to be considered only for its definitional value. Our standard
of review here is whether the district court abused its discretion by admitting
the testimony for that limited purpose. These terms were not generally known,
and there was considerable value in having the words explained to the jury. See
Federal Rule of Evidence 702.

62

Nelson was particularly qualified to testify. He had participated in organized

crime investigations for 12 years, had written various works on the subject, and
had obtained information regarding this area from literature in the field,
discussions with organized crime figures and transcripts of intercepted
conversations. Moreover, one of the defense attorneys had stated earlier in the
trial that "any agent [would be able to] get up there and testify what the terms
were." 6 Tr. 294. Consequently, we cannot say that it was an abuse of
discretion to admit the testimony, especially in light of the limiting instruction
given to the jury.

63

The second alleged trial error is raised only by Warrington. Warrington was
represented in this case by Oscar Gaskins, Esquire. Gaskins worked with an
associate, Ronald McGaskill, Esquire, and had assured the court that one or the
other would be present at the trial. On the first day of trial, Warrington moved
for a continuance on the ground that Gaskins had conflicting trial
responsibilities that would require him to miss portions of the trial. The district
court denied the motion, noting that all defendants and their counsel had known
the trial date for two months, and that all the others had made arrangements to
be available during this period. Also, Warrington's other attorney had the
experience and capability to represent Warrington during Gaskins' absences.
Gaskins was present during voir dire and opening statements, conducted some
of the cross-examinations, and made the closing argument on his client's behalf.
Warrington does not claim that McGaskill's representation was in any way
inadequate. In light of all the circumstances, the denial of a continuance here
was not an abuse of discretion. See Morris v. Slappy, --- U.S. ----, ----, 103 S.Ct.
1610, 1615, 75 L.Ed.2d 610 (U.S.1983); Ungar v. Sarafite, 376 U.S. 575, 84
S.Ct. 841, 11 L.Ed.2d 921 (1964); Paullet v. Howard, 634 F.2d 117, 119 (3d
Cir.1980).

64

Bongiovanni adopts the argument that the district court erred in not granting
him an acquittal on the ground that FBI wiretaps might have intercepted
privileged attorney-client communications between Spirito and Spirito's lawyer
during the course of the trial. Bongiovanni does not explain how the alleged
violation of Spirito's rights affected him; he may believe that general matters of
trial strategy were overheard. The district court held a series of ex parte
hearings with the government to determine the validity of the assertions that the
attorney-client relationship had been invaded,21 and ascertained that no
violations of Spirito's sixth amendment rights had occurred. After reviewing the
sealed transcripts of the ex parte proceedings, we conclude that the district
court was correct; the attorney-client relationship was not violated.
Accordingly, Bongiovanni's argument that he was collaterally harmed by any
such violation is without merit.

VI.
65

Appellants' final argument is that the RICO statute violates their fifth and
eighth amendment rights by imposing unduly harsh penalties for their
activities. Among the offenses which may be considered as racketeering acts
under Section 1961 are certain state crimes.22 To constitute a predicate offense
for RICO purposes, these crimes must be punishable under state law by periods
of imprisonment longer than one year. The predicate racketeering acts in the
present case arising out of the numbers operations and the Andalusia craps
games are state law violations, prohibited by 18 Pa.Cons.Stat. Secs. 5512-13.
Although they carry maximum penalties of five years, these crimes are
classified as misdemeanors by the Commonwealth. 18 Pa.Cons.Stat. Sec. 1104.
Appellants urge that the imposition of the severe RICO penalties based on what
they characterize as minor crimes is "cruel and unusual" and so fundamentally
unfair as to violate their constitutional rights.

66

The argument is faulty in two major respects. First, we have previously

explained the reason for the one-year limitation; it was "meant to limit RICO to
serious offenses, offenses which in many but not all jurisdictions would be
called felonies." United States v. Davis, 576 F.2d 1065, 1067 (3d Cir.), cert.
denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978). Thus, we need not
be overly concerned with the labels a state chooses to attach to its crimes, so
long as the violation falls within one of those categories of state offenses which
Congress considered grave enough to form the basis for a federal crime.

67

Appellants' argument also misperceives the nature of a RICO violation. The

predicate offenses referred to in the statute are not themselves the RICO
violation, they are merely one element of the crime. The federal statute does not

prohibit the commission of the individual racketeering acts. Rather, it bans the
operation of an on-going enterprise by means of those acts. It was the enterprise
that was seen by Congress to be the more serious and far-reaching problem. See
United States v. Forsythe, 560 F.2d 1127, 1135 (3d Cir.1977). Congress
therefore determined that more serious sanctions were needed to prevent that
type of continuing conduct. In light of the Supreme Court's recent decisions in
Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (U.S.1982) and
Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), we
cannot say that Congress exceeded its constitutional limits in setting the
penalties for this crime, nor that the district court did so by imposing the
sentences it did in this case.23
VII.
68

None of the claims raised by the appellants has persuaded us that reversible
error was committed. Accordingly, the judgment of the district court in Nos.
82-1399, 82-1410, 82-1411, 82-1413 and 82-1414 will be affirmed. The
judgment in 82-1412, relating to Pasquale Spirito, now deceased, will be
vacated and that matter will be remanded to the district court with instructions
to dismiss the indictment.

Honorable Harold A. Ackerman, United States District Court for the District of
New Jersey, sitting by designation

Pasquale Spirito was killed during the pendency of this appeal. Accordingly,
the judgment in 82-1412 will be vacated and that case remanded to the district
court with directions to dismiss the indictment. See United States v. Pauline,
625 F.2d 684, 685 (5th Cir.1980); United States v. Littlefield, 594 F.2d 682
(8th Cir.1979); United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977)

A final defendant, Frank Primerano, was acquitted by the court at the close of
evidence

The predicate offenses charged against each appellant were as follows:

Ciancaglini--extortionate credit transactions, mail fraud, collection of unlawful
debt, and operation of three separate illegal gambling activities (Reed Street
craps game, 1976 numbers operation, 1977 numbers operation).
Harry Riccobene--extortionate credit transaction, collection of unlawful debt,
and operation of illegal gambling business (1977 numbers operation).

Mario Riccobene--extortionate credit transaction and operation of illegal

gambling business (1977 numbers operation). Mario was originally charged
with collection of unlawful debt as an additional predicate offense, but that
charge was dismissed at the conclusion of the government's case at trial.
Warrington--wire fraud, and three separate gambling operations (Reed Street
craps game, Andalusia craps game, and 1978 numbers operation).
Bongiovanni--collection of unlawful debt and operation of illegal gambling
business (1977 numbers operation).
4

Harry Brown has previously been convicted for his participation in these
activities. See U.S. v. Brown, 583 F.2d 659 (3d Cir.1978), cert. denied, 440
U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979)

The government's brief states that " 'cut numbers' are numbers that are played
more often than other numbers, and on which the payoff to the bettor is 'cut' to
a level lower than the usual 600 to 1 payoff." Govt.Br. at 25 n. 22

A ribbon is a record of wagering activities in a numbers operation

For purposes of RICO, an "unlawful debt" is defined as a debt:

(A) incurred or contracted in gambling activity which was in violation of the
law of the United States, a State or political subdivision thereof, or which is
unenforceable under State or Federal law in whole or in part as to principal or
interest because of the laws relating to usury, and (B) which was incurred in
connection with the business of gambling in violation of the law of the United
States, a State or political subdivision thereof, or the business of lending money
or a thing of value at a rate usurious under State or Federal law, where the
usurious rate is at least twice the enforceable rate:
18 U.S.C. Sec. 1961(6).

Section 1962(d) also prohibits conspiracies to violate the other substantive

criminal provisions of RICO. Sections 1962(a) and (b)

The Second Circuit has recently held that certain illegal organizations, although
satisfying the Turkette requirements for "enterprise," are not within the ambit of
the RICO statute. In United States v. Ivic, 700 F.2d 51 (2d Cir.1983), Judge
Friendly concluded that the members of a Croatian nationalist terrorist
organization could not be prosecuted under RICO for their participation in that
organization since Congress had enacted the statute to prohibit economically
motivated activity. Since neither the enterprise nor the predicate offenses have

a "financial purpose," the RICO statute was inapplicable to their activities

10

The participants in the conversation are designated by their initials: H-Harry

Riccobene; PT-Phil Testa; FN-Frank Narducci; NS-Nicky Scarfo. Phrases
transcribed phonetically are marked "(PH)."
PT: So what's gonna happen, HARRY? Did you hear anything about the new
"Cosig" ... (PH)?
H: The new what?
PT: The new "Cosig"! The new Consiglieri! (TESTA utters Italian expression
...) ... "Menda se vis" ... (PH).
***
: He ... never says nothing to us. I'm "Capi" and don't know. I presume he don't
know either.
H: It shouldn't be....
PT: I know what the law is HARRY.
H: It shouldn't be.
NS: The right way should be the right way.
PT: Yeah.
H: Yeah. If you don't want to get.
PT: Everything is changed! I don't know, everybody does what the F ...
(obscene) ... they want anymore!
H: No. Nothing changed.
PT: Well.
H: Well, if you don't get "everybody" ... You get all of the "heads" ... You
know? That's acceptable. And let them vote on it.
PT: Yeah, you know why it's acceptable? Because the Capi's are supposed to
talk to their men.
***

PT: But in your time HARRY, has there ever been more than two candidates?
More than one candidate?
H: Never.
PT: Usually they chose a guy and that's the end of it.
NS: And that's the end of it. It usually works out that way.
H: We'd have a "thing" you know. And I would say, ah ... "I propose NICKY."
And you would go, "I second the motion."
: All right.
H: Anybody against it?
NS: And that's the end of it.
H: You see, it isn't like it used to be, where everybody was invited. Today, it's
not gonna be that way. They are only gonna invite certain people. And the
certain people are gonna be the ones that are gonna give him the vote.
PT: Right.
H: You follow me?
NS: Uh huh.
H: If it could be like the old days, then you could go around him a little a be ah
... you know, use the power. You talk to all your potential close associates.
Then you get the names, nominate somebody. You propose him. I propose this
guy. And somebody seconds the motion. And then there is a vote between
them. If nobody goes against the guy that is selected, it's all over.
: Over here, he's not even bounded by the cigars PH. He just proposes "A" PH
and that's it. Whatever he says.
H: That's right, that's what it is!
NS: Right.
: Get the ones that are gonna go that way and that's it.
11

See note 5 supra & accompanying text

12

The question whether each appellant knowingly participated in the enterprise is

a separate issue, going to individual criminal liability for the conspiracy. This
issue will be discussed at pp. 226 - 230, infra

13

See p. 219 supra

14

This was in fact the situation presented in Turkette. The Supreme Court
affirmed the respondent's RICO conviction, which had been based on his
"leadership of this criminal organization through which he orchestrated and
participated in the commission of the various crimes delineated in the RICO
count or charged in the eight preceding counts." Turkette, 452 U.S. at 579, 101
S.Ct. at 2527

15

The core group met regularly at Frank's Cabana Steaks on Tenth Street in
Philadelphia and is referred to throughout the tapes as "Tenth Street" or "the
guys from Tenth Street."

16

"Racketeering activity" means (A) any act or threat involving murder,

kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic
or other dangerous drugs, 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 201
(relating to bribery), section 224 (relating to sports bribery), sections 471, 472,
and 473 (relating to counterfeiting), section 659 (relating to theft from interstate
shipment) if the act indictable under section 659 is felonious, section 664
(relating to embezzlement from pension and welfare funds), sections 891-894
(relating to extortionate credit transactions), section 1084 (relating to the
transmission of gambling information), section 1341 (relating to mail fraud),
section 1343 (relating to wire fraud), section 1503 (relating to obstruction of
justice), section 1510 (relating to obstruction of criminal investigations), section
1511 (relating to the obstruction of state or local law enforcement), section
1951 (relating to interference with commerce, robbery, or extortion), section
1952 (relating to racketeering), section 1953 (relating to inter state
transportation of wagering paraphernalia), section 1954 (relating to unlawful
welfare fund payments), section 1955 (relating to the prohibition of illegal
gambling businesses), sections 2314 and 2315 (relating to interstate
transportation of stolen property), sections 2341-2346 (relating to trafficking in
contraband cigarettes), sections 2421-24 (relating to white slave traffic), (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), or (D) any offense
involving fraud connected with a case under title 11, fraud in the sale of
securities, or the felonious manufacture, importation, receiving, concealment,

buying, selling, or otherwise dealing in narcotic or other dangerous drugs,

punishable under any law of the United States;
18 U.S.C. Sec. 1961(1).
17

The indictment also charged that Mario Riccobene had committed two
racketeering acts and collected an unlawful debt. The unlawful debt charge was
dismissed at the conclusion of the government's case. Joseph Bongiovanni was
alleged to have committed one racketeering act and to have collected unlawful
debt. Because two racketeering acts were not alleged, the jury was instructed
that it could convict him of the RICO violation only on the basis of the
unlawful debt. Transcript of charge of the Court at 114

18

The defendant in Brown was one of the witnesses in the case now before us.
Harry Brown, the general manager of Chestnut Hill Lincoln Mercury, was
convicted for his part in the extortion of Russell Wilmerton and the scheme to
defraud the dealership's insurance carrier by staging a fake robbery. These
activities are also the basis for several of the predicate offenses charged against
Ciancaglini

19

The district court, in refusing the request for interrogatories, recognized that the
Third Circuit has repeatedly stated that the use of special interrogatories is
disfavored in criminal cases. But see Note, "RICO and the Predicate Offenses,"
58 N.D.L.Rev. 382, 407-08 (1982) (arguing that special verdicts should be used
in RICO cases to determine which predicate offenses the jury found to
comprise the pattern of racketeering activity). Even where this Court has
approved the use of such questions, it has reiterated its concerns that special
interrogatories may unduly sway the jury in its decision regarding the
defendant's guilt or innocence. See United States v. Desmond, 670 F.2d 414 (3d
Cir.1982); United States v. Palmeri, 630 F.2d 192 (3d Cir.1980), cert. denied,
450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981). We note, however, that
in the present case the questions were to have been submitted after the verdict
had been returned and the jury polled. Thus, the dangers usually involved in the
use of jury interrogatories in a criminal case were not present here

20

Warrington "adopts" from the briefs of other appellants the argument that the
jury instructions as to Count II were inadequate. Ciancaglini "adopts" a similar
argument with respect to the charge in Count III. We are unable to locate a
discussion of either issue in any brief. Absent any evidence of error, or
allegation that the matters were properly raised before the district court, this
Court cannot consider these claims

21

The proceedings were conducted ex parte to avoid jeopardizing ongoing FBI

investigations. Because the transcripts are sealed, we will not disclose the

substance of any of the hearings

22

18 U.S.C. Sec. 1961(1)(A). The text of this provision is set out at n. 16, supra

23

The appellants received the following sentences on the RICO conviction:

Mario Riccobene--Five years imprisonment (suspended) and five years
probation to run following completion of his term of imprisonment of Count III.
Joseph Ciancaglini--Ten years imprisonment and a fine of $10,000.
Charles Warrington--Ten years imprisonment and a fine of $10,000.
Joseph Bongiovanni--Seven years imprisonment (suspended) and five years
probation to run following completion of his term of imprisonment for Count
III.
Harry Riccobene--Nine years imprisonment and a fine of $15,000.