Providence Journal v.

United States Court of Appeals
For the First Circuit
Nos. 02-2158 Vol. I of II
02-2159
02-2165
02-2166
02-2188

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT A. CIANCI, JR., FRANK E. CORRENTE, and
RICHARD E. AUTIELLO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Chief U.S. District Judge]

Before

Howard, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

John A. MacFadyen for appellant Vincent A. Cianci, Jr.
Anthony M. Traini for appellant Frank E. Corrente.
Richard C. Bicki with whom Cerilli & Bicki and Edward Gerstein
were on brief for appellant Richard E. Autiello.
Donald C. Lockhart, Assistant United States Attorney with whom
Margaret E. Curran, United States Attorney, Richard W. Rose and
Terrence P. Donnelly, Assistant United States Attorneys were on
brief, for appellee.

August 10, 2004
 STAHL, Senior Circuit Judge. Vincent A. Cianci was the

Mayor of Providence, Rhode Island; Frank E. Corrente was the City's

Director of Administration; Richard E. Autiello was a member of the

Providence City Towing Association, a private organization.

Between April 23 and June 24, 2002, the three were jointly tried on

a superseding indictment that charged them and others with forty-

six violations of federal statutes prohibiting public corruption.

The district court entered judgments of acquittal on eight of the

charges but submitted the rest to the jury.

On June 24, 2002, the jury returned a total of eight

guilty verdicts but acquitted on the remaining thirty counts. All

three defendants were convicted on a single count charging a

conspiracy to violate the RICO (Racketeer Influenced and Corrupt

Organizations) statute. See 18 U.S.C. § 1962(d). Corrente and

Autiello were convicted on a count charging a federal bribery

conspiracy. See 18 U.S.C. §§ 371 & 666(a)(1)(B). Corrente was

convicted on a count charging a substantive RICO violation, see 18

U.S.C. § 1962(c), two counts charging Hobbs Act extortion

conspiracies, see 18 U.S.C. § 1951(a), and two counts charging

Hobbs Act attempted extortions, see id. Autiello was convicted on

an additional count charging a second federal bribery conspiracy.

See 18 U.S.C. §§ 371 & 666(a)(1)(B). The jury also answered "YES"

to four of thirty-seven special interrogatories, which asked

whether the government had "proven" the alleged predicate acts

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underlying the racketeering counts; all other special

interrogatories were answered "NO" or not answered at all.

The district court subsequently granted a judgment of

acquittal on one of the extortion conspiracy charges of which

Corrente had been convicted; ordered the forfeiture of $250,000 in

a campaign contribution fund controlled by Cianci and Corrente

pursuant to RICO's forfeiture provisions, see 18 U.S.C. §

1963(a)(1); and sentenced the defendants to prison terms of sixty-

four months (Cianci), sixty-three months (Corrente), and forty-six

months (Autiello).

Cianci, Corrente, and Autiello appeal their convictions

and sentences, and Cianci and the government cross appeals the

district court's forfeiture ruling. We begin with challenges to

defendants' RICO convictions.

I. The RICO Convictions (All Defendants)

A. Indictment

Count One of the indictment charged Cianci, Autiello, and

Corrente with conspiracy to operate the affairs of an enterprise

consisting of the defendants themselves, the City of Providence,

"various officers, agencies and entities of Providence" including

thirteen specified agencies, Jere Realty, and Friends of Cianci,

and others "known or unknown to the Grand Jury." The purpose of

the enterprise "included the following: a. Enriching Defendant

Vincent A. Cianci . . . Friends of Cianci through extortion, mail

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fraud, bribery, money laundering, and witness tampering, and b.

Through the same means enriching, promoting and protecting the

power and assets of the leaders and associates of the enterprise."

In a pre-trial motion, defendants moved to dismiss the RICO

allegations, asserting that the enterprise as charged was improper

in that it was overly broad, vague, and legally impossible.1 The

district court denied the motion. The issues raised by this motion

were revisited on motions for judgment of acquittal and for a new

trial. The court denied these motions as well.

Defendants argue that the enterprise charged in the

indictment was purposefully obscure and did not provide adequate

notice to defendants of the crimes for which they were charged and

ultimately convicted. The argument is couched in two ways: that 18

U.S.C. § 1961(4) is unconstitutional as applied for failure to

provide “fair warning” of the alleged criminal conduct and that the

charged enterprise failed to provide adequate notice against which

the defendants could defend themselves. The government counters

that, under the RICO statute, enterprise is defined broadly and

that defendants were sufficiently apprised of the nature and extent

of the charges.

RICO makes it unlawful "for any person employed by or

associated with any enterprise engaged in, or the activities of

1
We address this legal impossibility argument later in the
context of whether sufficient evidence supported the charged RICO
enterprise.

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which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity[.]"

18 U.S.C. § 1962(c). The statute also outlaws conspiracies to

violate § 1962(c). See id. § 1962(d). As stated above, Corrente

was convicted of a substantive violation of § 1962(c), and all

three defendants were convicted of RICO conspiracy under § 1962(d).

A RICO "enterprise" "includes any individual,

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity." 18 U.S.C. § 1961(4). See United States v.

DeCologero, 364 F.3d 12, 18 (1st Cir. 2004). It is important to

stress that the Supreme Court has admonished that RICO and the term

"enterprise" be construed expansively. See United States v.

Turkette, 452 U.S. 576, 586-87 (1981); Sedina, S.P.R.L. v. Imrex

Co., Inc., 473 U.S. 479, 497-98 (1985); see also United States v.

London, 66 F.3d 1227, 1243-44 (1st Cir. 1995); United States v. Lee

Stoller Enterprises, Inc., 652 F.2d 1313, 1318 (7th Cir. 1981).

The term’s flexibility is denoted by the use of the word “includes”

rather than “means” or “is limited to”; it does not purport to be

exhaustive. See United States v. Masters, 924 F.2d 1362, 1366 (7th

Cir. 1991) (Posner, J.); United States v. Perholtz, 842 F.2d 343,

353 (D.C. Cir. 1988). Accordingly, “enterprise” has been

interpreted inter alia to include (1) legal entities such as

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legitimate business partnerships and corporations, and (2)

illegitimate associations-in-fact marked by an ongoing formal or

informal organization of individual or legal-entity associates, see

London, 66 F.3d at 1243-44 (associations-in-fact may include legal

entities such as corporations), who or which function as a

continuing organized crime unit "for a common purpose of engaging

in a course of conduct." Turkette, 452 U.S. at 580-83; see also

United States v. Patrick, 248 F.3d 11, 19 (1st Cir. 2001), cert.

denied, 535 U.S. 910 (2002). The enterprise charged in this case

is of the latter, associated-in-fact variety.

Here, the superseding indictment delineated the members

of the enterprise, the roles of the defendants in the enterprise,

the purposes and goals of the racket, and the ways in which the

defendants used other members of the enterprise--specifically,

municipal entities that they controlled as part of the conspiracy--

to further those purposes and goals. It alleged that defendants

conspired to violate and did in fact violate RICO through their

involvement in an associated-in-fact enterprise devoted to

enriching and empowering defendants and others through unlawful

means. The enterprise was alleged to have been comprised of the

individual defendants; the City of Providence "including, but not

limited to" many of its departments, offices, and agencies; the

campaign contribution fund controlled by Cianci and Corrente; and

others known and unknown to the grand jury. The enterprise

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allegations, which we reproduce as redacted following the district

court's entry of the eight judgments of acquittal prior to the jury

charge, read as follows:

THE RACKETEERING ENTERPRISE

Defendants VINCENT A. CIANCI, JR., a/k/a
"Buddy"; FRANK E. CORRENTE; RICHARD E.
AUTIELLO; the City of Providence
("Providence"), including, but not limited to,
the Office of Mayor, the Office of the
Director of Administration, the Providence
City Solicitor's Office, the Department of
Planning and Development, the Providence
Redevelopment Agency, the Tax Collector's
Office, the Tax Assessor's Office, the Board
of Tax Assessment Review, the Finance
Department, the Department of Public Safety,
the Providence School Department, the
Department of Inspection and Standards, and
the Building Board of Review; Friends of
Cianci, the political organization of
Defendant VINCENT A. CIANCI, JR., a/k/a
"Buddy"; and others known and unknown to the
Grand Jury, constituted an "enterprise" as
defined by 18 U.S.C. § 1961(4), that is, a
group of individuals and entities associated
in fact. This enterprise, which operated in
the District of Rhode Island and elsewhere,
was engaged in, and its activities affected
interstate commerce.

PURPOSES OF THE ENTERPRISE

The purposes of the enterprise included
the following:

a. Enriching Defendant VINCENT A.
CIANCI, JR., a/k/a "Buddy" and Friends of
Cianci through extortion, mail fraud, bribery,
money laundering, and witness tampering; and

b. Through the same means enriching,
promoting, and protecting the power and assets
of the leaders and associates of the
enterprise.

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 DEFENDANTS AND THEIR ROLES IN THE ENTERPRISE

Defendants VINCENT A. CIANCI, JR., a/k/a
"Buddy;" and FRANK E. CORRENTE were the
leaders of the enterprise . . . .

Defendant RICHARD E. AUTIELLO, and others
known and unknown to the Grand Jury, were
associated with, and conducted and
participated, directly and indirectly, in the
conduct of the enterprise's affairs, including
but not limited to extortion, mail fraud, and
bribery.

Superseding Redacted Indictment, ¶¶ 38-41. This enterprise was

alleged to have existed "from in or about January 1991 through in

or about December 1999."

The balance of the indictment (again, in the redacted

form in which it went to the jury) also detailed the "pattern of

racketeering activity" underlying the grand jury's RICO and RICO

conspiracy allegations. The unlawful conduct comprising the

alleged pattern was set forth in a section detailing the predicate

RICO "Racketeering Acts" and in separate offense counts. The

pattern was itself subdivided into nine alleged schemes:

1. A scheme, carried out between 1991 and
late 1999, in which Corrente (with Autiello
serving as his intermediary) pressured
companies with whom the Providence Police
Department contracted for towing services to
make campaign contributions totaling some
$250,000 to Friends of Cianci in order to
remain on the tow list ("the Tow List
scheme");

2. A scheme, carried out between 1991 and
1998, in which the owner of Jere Realty, a
local real estate company, was alleged to have
paid bribes and kickbacks which made their way

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to Corrente in order to secure a Providence
School Department lease for one of the
company's Providence buildings ("the Jere
Lease scheme");

3. A 1998 scheme in which Cianci was alleged
to have been involved in extorting a $10,000
contribution from the estate of Fernando Ronci
(which owed the City some $500,000 in back
taxes) in exchange for his support in the
estate's efforts to secure a tax abatement
from the corrupt Board of Tax Assessment
Review, which was chaired by co-conspirator
Joseph Pannone and vice-chaired by co-
conspirator David Ead ("the Ronci Estate
scheme");

4. A 1996-97 scheme in which Cianci was
alleged to have arranged for Christopher Ise
to obtain a job in the City's Department of
Planning and Development in return for a
$5,000 contribution ("the Ise Job scheme");

5. A 1999 scheme in which Cianci was alleged
to have supported the contemplated sale of two
City lots to a City vendor, Anthony Freitas,
in return for a $10,000 contribution ("the
Freitas Lots scheme");

6. A 1998-99 scheme in which Corrente was
alleged to have attempted to influence the
Providence School Department to encourage a
city contractor entitled to reimbursement from
the City for its lease expenses to lease a
building owned by Anthony Freitas in return
for contributions totaling $2,000 ("the
Freitas Lease scheme");

7. A 1998 scheme in which Corrente, acting
through Joseph Pannone, was alleged to have
facilitated prompt payments of invoices
submitted to the City by a business owned by
Anthony Freitas in return for contributions
totaling $1,100 ("the Freitas Invoices
scheme");

8. A 1998 scheme in which Cianci was alleged
(a) to have attempted to influence the City's

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 Building Board of Review to deny a request for
construction variances made by the private
University Club in retaliation for the Club's
having refused to admit him as a member back
in the 1970s and its continuing refusal to
admit him, and (b) to have extorted a free
honorary membership from the Club as the
construction variance dispute was unfolding
("the University Club scheme"); and

9. A 1996 scheme in which Autiello conspired
with an unnamed public official to facilitate
the hiring of Joseph Maggiacomo as a
Providence police officer in return for a
$5,000 cash contribution by Joseph's mother,
Mary Maggiacomo ("the Maggiacomo Job scheme").

"[A]n indictment is sufficient if it, first, contains the

elements of the offense charged and fairly informs a defendants of

the charge against which he must defend, and, second, enables him

to plead an acquittal or conviction in bar of future prosecutions

for the same offense." Hamling v. United States, 418 U.S. 87, 117

(1974). "It is generally sufficient that an indictment set forth

the offense in the words of the statute itself, as long as 'those

words of themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements necessary to

constitute the offense intended to be punished.'" Id. (citations

omitted); see also United States v. McDonough, 959 F.2d 1137, 1140

(1st Cir. 1992).

The indictment not only tracks the language of the RICO

statute, but also goes into considerable detail with respect to the

underlying factual allegations. Hence, we conclude that defendants

were more than sufficiently apprised of the charges.

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 B. Enterprise

The defendants also argue that their RICO convictions

cannot stand because there was insufficient evidence to ground the

jury's foundational finding that the government had proved the

existence of the RICO "enterprise" that the government charged.2

We begin our analysis by summarizing the relevant legal principles

and the government's RICO theory and proof.

In cases involving an alleged associated-in-fact RICO

enterprise, the existence of the charged enterprise does not

follow, ipso facto, from evidence that those named as the

enterprise's associates engaged in crimes that collectively may be

characterized as a "pattern of racketeering activity":

While the proof used to establish these
separate elements [i.e., the "enterprise" and
the "pattern of racketeering activity"] may in
particular cases coalesce, proof of one does
not necessarily establish the other. The
"enterprise" is not the "pattern of
racketeering activity"; it is an entity
separate and apart from the pattern of
activity in which it engages. The existence
of an enterprise at all times remains a
separate element which must be proved by the
Government.

2
The indictment and the jury instructions required that the
government prove the same enterprise, described below, in order to
secure convictions on both the substantive RICO count and the RICO
conspiracy count. The analysis that follows therefore applies with
equal force to the substantive RICO conviction returned against
Corrente and to the RICO conspiracy convictions returned against
Cianci, Corrente, and Autiello.

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Turkette, 452 U.S. at 583. In other words, criminal actors who

jointly engage in criminal conduct that amounts to a pattern of

"racketeering activity" do not automatically thereby constitute an

association-in-fact RICO enterprise simply by virtue of having

engaged in the joint conduct. Something more must be found --

something that distinguishes RICO enterprises from ad hoc one-time

criminal ventures. See Bachman v. Bear Stearns & Co., Inc., 178

F.3d 930, 932 (7th Cir. 1999) (Posner, C.J.) (noting that a

contrary rule would erroneously make "every conspiracy to commit

fraud . . . a RICO [enterprise] and consequently every fraud that

requires more than one person to commit . . . a RICO violation").

Courts have divided over the legal standards that guide

the drawing of this distinction. Some require proof that an

alleged associated-in-fact enterprise have an "ascertainable

structure distinct from that inherent in the conduct of a pattern

of racketeering activity . . ., which might be demonstrated by

proof that a group engaged in a diverse pattern of crimes or that

it has an organizational pattern or system of authority beyond what

was necessary to perpetrate the predicate crimes." Patrick, 248

F.3d at 18 (quoting United States v. Bledsoe, 674 F.2d 647, 664

(8th Cir. 1982), and discussing cases from other circuits that have

adopted Bledsoe's "ascertainable structure" standard) (internal

quotation marks omitted). Courts following the "ascertainable

structure" approach do so out of concern that the factfinder not be

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misled into "collaps[ing] . . . the enterprise element with the

separate pattern of racketeering activity element of a RICO

offense." Id. (quoting Bledsoe, 674 F.2d at 664) (internal

quotation marks omitted).

This circuit has cast its lot with courts that have

declined to make Bledsoe's "ascertainable structure" criterion a

mandatory component of a district court's jury instructions

explaining RICO associated-in-fact enterprises. See id. at 18-19.

Instead, we have approved instructions based strictly on Turkette's

explanation of how a criminal association might qualify as a RICO

enterprise. See, e.g., Patrick, 248 F.3d at 17-19. In doing so,

we have read Turkette to impose a requirement that those associated

in fact “function as an ongoing unit” and constitute an “ongoing

organization.” Id. at 19. Also important to such an enterprise is

that its members share a "common purpose." See, e.g., id.;

Clemente v. Ryan, 901 F.2d 177, 180 (1st Cir. 1990) ("[A]lthough

much about the RICO statute is not clear, it is very clear that

those who are 'associates' . . . of a criminal enterprise must

share a 'common purpose' . . . .") (citations omitted).

We turn now to the particulars of the defendants'

argument. First, they contend that the indictment charged a legal

impossibility in alleging that municipal entities were themselves

part of the unlawful purpose associated-in-fact enterprise. They

base this argument on the requirement that members of such an

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enterprise share a common unlawful purpose and cases holding that

municipalities cannot be found to have acted with unlawful intent.

See, e.g., Lancaster Comm. Hosp. v. Antelope Valley Hosp. Dist.,

940 F.2d 397, 404 (9th Cir. 1991) (“[G]overnment entities are

incapable of forming a malicious intent.”); United States v.

Thompson, 685 F.2d 993, 1001 (6th Cir. 1982) ("Criminal activity is

private activity even when it is carried out in a public forum and

even though the activity can only be undertaken by an official's

use of a state given power[.]").

Defendants’ argument misses the mark because neither the

indictment nor the jury instructions compel the conclusion that the

City itself had to have formed an unlawful intent. It is

uncontroversial that corporate entities, including municipal and

county ones, can be included within association-in-fact RICO

enterprises. See, e.g., London, 66 F.3d at 1244; Masters, 924 F.2d

at 1366. It is also beyond dispute, as the Supreme Court held in

Turkette, that “the term ‘enterprise’ as used in RICO encompasses

both legitimate and illegitimate enterprises.” 452 U.S. at 578.

As the D.C. Circuit elucidated:

[A restrictive] reading of 1961(4) would lead
to the bizarre result that only criminals who
failed to form corporate shells to aid their
illicit schemes could be reached by RICO.
[Such an] interpretation hardly accords with
Congress’ remedial purposes: to design RICO as
a weapon against the sophisticated racketeer
as well as (and perhaps more than) the
artless.

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Perholtz, 842 F.2d at 353. Municipal entities can be part of an

unlawful purpose association-in-fact enterprise so long as those

who control the entities share the purposes of the enterprise.

“RICO does not require intentional or ‘purposeful’ behavior by

corporations charged as members of an association-in-fact.” United

States v. Feldman, 853 F.2d 648, 657 (9th Cir. 1988). A RICO

enterprise animated by an illicit common purpose can be comprised

of an association-in-fact of municipal entities and human members

when the latter exploits the former to carry out that purpose.

Cianci, Corrente, and Autiello – those who wielded influence,

exerted pressure, and effectively controlled the City’s various

components – are the criminals here. Defendants’ legal

impossibility argument holds water only had the government sought

prosecution of the City itself. The City and its component

agencies are not the defendants in this case; they were deemed

members of the enterprise because without them, Cianci, Corrente,

and Autiello would not have been able to even attempt to perpetrate

the charged racketeering schemes. Indeed, this is not the first

time an association-in-fact enterprise composed in this manner has

been found to exist. See, e.g., Masters, 924 F.2d at 1362; United

States v. McDade, 28 F.3d 283 (3d Cir. 1994) (upholding

association-in-fact enterprise consisting of congressman, his two

offices, and congressional subcommittees that he chaired); United

States v. Dischner, 974 F.2d 1502 (9th Cir. 1992) (upholding

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association-in-fact enterprise consisting of municipal officials,

office of mayor, and department of public works); United States v.

Angelilli, 660 F.2d 23, 31-33 (2d Cir. 1981) (“We view the language

of § 1961(4), . . . as unambiguously encompassing governmental

units, . . . and the substance of RICO’s provisions demonstrate a

clear congressional intent that RICO be interpreted to apply to

activities that corrupt public or governmental entities.”). In

each of these cases, the groupings of individuals and corporate or

municipal entities were sufficiently organized and devoted to the

alleged illicit purposes that the resulting whole functioned as a

continuing unit. The common purpose was dictated by individuals

who controlled the corporate or municipal entities’ activities and

manipulated them to the desired illicit ends.

The indictment and jury instructions are consistent with

this framing of the enterprise. The district court instructed the

jury, without objection from either party, that “the Government

must prove that the alleged enterprise had an ongoing organization,

whether it be formal or informal, and that its various associates

functioned together as a continuing unit to achieve common goals.”

The court continued, “It is not necessary in proving the existence

of an enterprise to show that each member of the enterprise

participated in or even knew of all of its activities, but it is

necessary to show that all members of the alleged enterprise shared

a common purpose.” Requiring the government to prove that all

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members named in the enterprise shared a common purpose of

illegality did not compel the government to show that the City

itself had the mens rea to seek bribes and to extort. The Ninth

and Sixth Circuits articulated what in some sense is the obvious:

that a corporate or municipal entity does not have a mind of its

own for purposes of RICO. Lancaster Comm. Hosp., 940 F.2d at 404;

Thompson, 685 F.2d at 1001. Unlawful common purpose is imputed to

the City by way of the individual defendants’ control, influence,

and manipulation of the City for their illicit ends. Whether the

defendants did exercise sufficient control over the City for

purposes of the enterprise is one of fact for the jury and

evidentiary sufficiency.

It follows that the defendants also have an evidence-

based argument. They contend that their RICO convictions must be

reversed because the evidence introduced at trial in support of the

alleged schemes set forth above -- the only proof from which the

jury might have inferred that the schemes were carried out, or were

intended to be carried out, by means of a RICO enterprise, see

Turkette, 452 U.S. at 583 (observing that proof of the pattern of

racketeering activity may in particular cases also constitute the

proof of the enterprise itself) -- was insufficient to ground a

finding that the schemes were conducted through the specific entity

alleged in the indictment to have constituted a RICO enterprise.

Defendants base this argument on an assertion that there was no

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evidence from which the jury might have inferred a shared purpose

between defendants and the municipal entities named as associates

of the enterprise and through which many of the schemes were

conducted. In support of this argument, the defendants point to

specific statements by the district court that "there is no

evidence that the [City] departments and/or agencies, themselves,

shared [the enterprise's] purposes," United States v. Cianci, 210

F. Supp. 2d 71, 73 (D. R.I. 2002) (denying defendants' motions for

judgments of acquittal), and that "none of [defendants'] acts . .

. resulted in any significant disruption of a Governmental

function." Id. The defendants also emphasize that, even if we

were to evaluate the sufficiency of the evidence underlying the

RICO convictions by construing the entire record in the light most

favorable to the government, the evidence is insufficient.

As set forth above, we have identified Turkette's

“ongoing organization,” “continuing unit,” and "common purpose"

requirements as the principal tools a factfinder should use to

distinguish a RICO enterprise from an ad hoc criminal

confederation. We have applied these requirements to unlawful

purpose associations-in-fact involving corporate legal entities.

See London, 66 F.3d at 1243-45. The district court adequately set

out these requirements to the jury; hence, we see no basis for

disregarding the court’s instructions in the course of our

sufficiency review. See, e.g., United States v. Zanghi, 189 F.3d

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71, 79-80 (1st Cir. 1999) (an unchallenged jury instruction that is

faithful to the indictment and "not patently incorrect or

internally inconsistent" becomes the standard by which evidentiary

sufficiency is to be measured) (citing United States v. Gomes, 969

F.2d 1290, 1294 (1st. Cir. 1992)).

After careful scrutiny of the record and setting the

evidence against the jury instructions, we conclude that the jury

could have found the above requirements, specifically that the

defendants and others named as enterprise members comprised an

ongoing organization that functioned as a continuing unit and was

animated by common purposes or goals.

We agree with the government's assertion that the jury's

enterprise finding is sustainable because there was sufficient

evidence that Cianci and Corrente exercised substantial control

over the municipal entities named as members of the enterprise.

Cianci was the City's mayor and Corrente its chief of

administration. They were alleged and were shown to have used

their positions and influence to sell municipal favors on a

continuing basis. The evidence indicates a close relationship "in

fact" among them, the City they managed, and Cianci's political

organization. Cianci, as mayor, and Corrente and Autiello, as city

officials, were strongly connected to and had considerable

influence over the various City employees and departments. Their

illegal schemes could function only with the cooperation, witting

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or unwitting, of certain City agencies and officials. Insofar as

Cianci's and the other defendants' criminal schemes were or would

be carried out by themselves and others acting in their municipal

roles, the City--if only to that extent--did share in the same

common criminal purpose.3 The defendants were not only human

members of the enterprise, but were the City’s official leaders

with considerable express and implicit authority over its

departments and employees. Moreover, the enterprise’s corrupt

purposes were aimed at exploiting the City’s resources. It is

because of this control and these close connections that the jury

could have imputed the enterprise's common purpose to the City.

See Masters, 924 F.2d at 1366 (“Surely if three individuals can

3
The evidence depicted a behavioral spectrum ranging from
innocent cooperation to willful complicity in unlawful conduct.
For example, with respect to the Freitas Invoices scheme, the
evidence was merely that an employee within the City's Finance
Department (Lorraine Lisi), acting at Corrente's request, paid
valid invoices more promptly than usual. Similarly, with respect
to the Ise Job scheme, the evidence was merely that the Deputy
Director of the Department of Planning and Development (Thomas
Deller) created a temporary position for Ise within the department
at Cianci's request. At the more culpable end of the spectrum,
however, there was evidence that, in connection with the Jere Lease
scheme, the head of the Department of Public Property (Alan Sepe)
and the Director of Business Relations for the School Department
(Mark Dunham) were influenced by Corrente to tailor the
specifications in a School Department lease bid to fit the
dimensions of Jere Realty's building, and then to support the Jere
Realty lease before the Board of Contract and Supply (which was the
entity formally empowered to accept or reject bids of City
contracts). Similarly, in connection with the Freitas Lease
scheme, there was evidence that Corrente again contacted Dunham
prior to finalization of the lease and influenced him to drop
consideration of an alternative lease.

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constitute a RICO enterprise, . . ., then the larger association

that consists of them plus entities that they control can be a RICO

enterprise too.”).

Evidence of defendants’ control, both titular and actual,

was sufficient to deem the enterprise a “continuing unit” and

“ongoing organization.” The jury could easily glean from taped

conversations and the trial testimony of David Ead –- a co-

conspirator and vice-chair of the Board of Tax Assessment Review –-

that there existed an organized structure with Cianci at the top,

Corrente as a middle man facilitating and often initiating

transactions, and others, including Autiello, Ead, and Pannone,

that fed deals into the organization (or in Ead’s case, sometimes

tried to replace Corrente as the middle man). The defendants

attempted to use, to varying degrees of success, various municipal

agencies in committing a series of related bribes and extortions.

These agencies were used in this manner on an ongoing basis from

1991 through 1999. The fact that other persons and entities were

used in some transactions but not in others does not matter; the

jury instructions reflected this flexibility.4

4
The court instructed, in relevant part:

“An enterprise may exist even though individual members come
and go as long as it continues in an essentially unchanged form
during substantially the entire period alleged in the indictment,
. . . .”

“It is not necessary in proving the existence of an enterprise
to show that each member of the enterprise participated in or even

-21-
 There was detailed evidence, moreover, placing Cianci,

the City’s mayor, in the middle of at least four of the enumerated

racketeering acts. With regard to the Ronci Estate scheme, David

Ead testified at trial that he suggested to Ronci’s attorney that

the estate settle its tax claim with the City for $100,000 in

exchange for a $10,000 contribution to the Friends of Cianci. Ead

met with Cianci and discussed the proposed deal. The settlement

was approved by the City’s Board of Tax Assessment Review. Ead

testified that shortly thereafter, he was contacted by Corrente,

who told him that Cianci wanted Corrente to collect the money. Ead

responded that he was waiting for the Ronci attorney, to which

Corrente replied, “Well you know that the Mayor he’s on my back –

do your best.” After receiving the money from Ronci’s attorney,

Ead brought the money to Corrente who put his finger on his lips

and took the envelope. A tape-recorded conversation between Joseph

Pannone and Anthony Freitas provided additional evidence.5 Our

dissenting brother recognizes that there was enough evidence for

knew of all of its activities, . . . .”

“. . . a Defendant need not have been associated with an
enterprise for the entire time that the enterprise existed in order
to have been associated with the enterprise, but a Defendant must
share some common goal or objective of the enterprise in order to
be a member.”
5
Pannone said to Freitas, “Ead took care of the Mayor, don’t
know what he gave the Mayor . . . He took care of me, too. He
pushed the Ronci settlement through.”

-22-
the jury to conclude that defendants functionally controlled the

Board of Tax Assessment Review, often for criminal purposes.

With regard to the Ise Job, Ead again testified that he

served as a middleman for Mayor Cianci, this time arranging a

$5,000 bribe in exchange for a municipal job. According to Ead,

Cianci asked during their conversation about Ise, cautious about

whether “he’s alright” and looking for assurances that “he’s not

going to say nothing.” Upon learning that the City’s Department of

Planning and Development had no positions available, Cianci ordered

the Department to “make one.” Upon receiving the $5,000

“contribution,” Cianci told Ead, “Don’t get nervous.”

In their trial testimony, which closely tracked taped

conversations among Freitas, Pannone, and other City officials,

both Freitas and Ead implicated Cianci in the Freitas Lots scheme,

in which Cianci pressured the Providence Redevelopment Authority,

the entity empowered to sell the lots, to expedite the sale of two

City-owned lots to Freitas in exchange for a $10,000 “contribution”

by Freitas to the Cianci political fund. Finally, with regard to

the Tow List scheme, Dorothy Deveraux –- Corrente’s assistant and

the Friends’ bookkeeper –- wrote a note to Corrente which

implicated all three defendants in that scheme.6 Moreover, as

6
Deveraux’s note supported the prosecution theory that when
towers occasionally “contributed” too much money under the same
name, the defendants arranged for “replacement” checks to be made
by third-party straw contributors. The note read, “FRANK –
attached are two over checks – Please sign and Dick Autiello will

-23-
Judge Howard concedes, the jury could have found, based primarily

on taped statements and the trial testimony of towing association

chairman Kenneth Rocha, that Corrente effectively controlled who

made it onto the police department’s tow list.

We recognize that the defendants did not always get their

way with municipal departments and employees.7 But the fact that

some racketeering schemes did not go as planned, and that certain

elements within the City may not have completely complied with the

defendants’ wishes, does not defeat the integrity of the charged

enterprise. The jury could have concluded that these glitches in

the schemes only meant that certain substantive crimes went

uncompleted and that otherwise, defendants possessed and exercised

considerable control over crucial elements of the City. The

evidence amply establishes a close relationship between defendants

and the City in which they exercised their leadership roles. The

be by today to replace with new checks – I need your help with the
other people – these overages total $3,420.00. I know the Mayor
does not want to part with that – without money being replaced.
Please assign someone to talk to these people.”
7
For example, in connection with the Freitas Lots scheme,
Cianci was displeased that elements within the Providence
Redevelopment Agency did not sufficiently accede to his wishes,
specifically when the PRA sold one of the “Freitas lots” before
Cianci had a chance to finalize a deal with Freitas. In connection
with the University Club scheme, Cianci was displeased when members
of the Providence Building Board of Review ignored his wishes and
granted the club some of the variances that it sought. Finally, in
connection with the Maggiacomo Job scheme, the Chief of Police
declined to admit Maggiacomo to the police academy because he had
a criminal history and had been untruthful during a screening
interview.

-24-
enterprise and the conspiracy still thrived and the defendants were

able to complete other schemes through their abuse of the municipal

apparatus.

Defendants attempt to expose what they deem an error by

the government in charging an overly broad enterprise that places

a criminal onus on a largely innocent City. They warn that an

enterprise such as that charged here implicates non-culpable

municipal parties in associations which they had little or no idea

were engaged in illicit activities. But this fear is misplaced.

Here, as long as elements within the City, such as the police chief

and members of the Building Review Board and Redevelopment

Agencies, in fact did not actively share in the defendants' illegal

purposes, we see no reason why we run into now-Justice Breyer’s

admonition in Ryan: that of failing to differentiate between

associations that fall within the sweep of RICO and associations

involving only the exploitation of others by criminals. See 901

F.2d at 180-81 (emphasizing the need to limit "the potentially

boundless scope of the word 'enterprise' so as to distinguish

culpable from non-culpable associations, and recognizing "the

serious consequences for any man or woman, state official or

private person, who is publicly accused of racketeering"); see

also Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226-28 (7th Cir.

-25-
1997).8 Justice Breyer’s limiting principle of a shared common

purpose among members of an association-in-fact enterprise still

functions here to prevent a “boundless enterprise.” Those

employees of a city that do not exhibit the requisite mens rea with

regard to the enterprise’s illicit purposes will not be criminally

or civilly implicated. In the present litigation, the City was

named a member of the charged enterprise, not a defendant. The

City “shared” in the enterprise’s purpose only to the extent of the

defendants’ considerable influence and control over the relevant

municipal agencies, and to the extent of those officials and

departments who were wittingly or unwittingly involved in the

various schemes. Being named in the enterprise does not make the

City itself criminally or civilly liable under RICO.9 It bears

repeating that the RICO statute defines “enterprise” broadly and

8
We distinguish Judge Howard’s law firm hypothetical on the
same basis by which defendants’ criminal purpose is imputed to the
City: that defendants, as City officials and leaders, had effective
titular and actual control over these municipal agencies. The same
presumably cannot be said for the hypothetical Providence law firm.
9
The definitions of an enterprise in the RICO statute and the
jury instructions in no way require an enterprise to include
nothing but criminal actors. To the contrary, a legitimate
business, exploited by racketeers, may be an enterprise. It is
true that members of an association-in-fact enterprise, such as is
now charged, must be connected by a common thread of purpose; and
one might often expect such a purpose to be of a criminal nature.
See Turkette, 452 U.S. at 578. But the ultimate question is
whether an association-in-fact exists. For this, it is not
required that each participant have a separate mens rea so long as
each can reasonably be said to share in the common purpose. The
City’s role here in the overall plans of the defendants suffices
for it be part of the association-in-fact enterprise.

-26-
that the Supreme Court has consistently instructed that we read the

overall statute expansively. See Turkette, 452 U.S. at 586-87;

Sedina, S.P.R.L., 473 U.S. at 497-98. A liberal construal of the

RICO statute and in particular, the term “enterprise,” leads us to

the conclusion that the enterprise, as charged, is supported by the

evidence.

C. Pattern of racketeering activity

Defendants also argue that there was insufficient

evidence of a pattern of racketeering activity. For purposes of a

RICO conspiracy, the sufficiency questions boils down to whether a

jury could have found that the defendants intended to further an

endeavor which, if completed, would have satisfied the “pattern”

requirement of RICO. See Salinas v. United States, 522 U.S. 52,

61-66 (1997); United States v. Edwards, 303 F.3d 606, 642 (5th Cir.

2002). Here, the evidence shows that the endeavor resulted in a

series of completed crimes. Evidence of all nine schemes

enumerated in the indictment, including the two that underlie

Corrente’s substantive RICO conviction, shows a pattern of

racketeering activity.

Two or more RICO predicate acts form a “pattern” if they

are (1) “related” and (2) “amount to or pose a threat of continued

criminal activity.” H.J., Inc. v. Northwestern Bell Tel. Co., 492

U.S. 229, 239 (1989); Systems Mgmt., Inc. v. Loiselle, 303 F.3d

100, 105 (1st Cir. 2002).

-27-
 Predicate acts are “related” for RICO purposes if they

“have the same or similar purposes, results, participants, victims,

or methods of commission, or otherwise are interrelated by

distinguishing characteristics and are not isolated events.” H.J.,

Inc., 492 U.S. at 240 (quotation marks omitted). We must bear in

mind that “a criminal enterprise is more, not less, dangerous if it

is versatile, flexible, diverse in its objectives and capabilities.

Versatility, flexibility, and diversity are not inconsistent with

pattern.” Masters, 924 F.2d at 1367.

The evidence shows that the defendants, and ultimately

Cianci, were the beneficiaries of most if not all of the nine

schemes. The jury could have concluded that the schemes were

designed to line Cianci’s pockets as well as to maintain his

political power in the City. As for methods, most of the schemes

involved either Cianci or Corrente calling or personally meeting

with city officials and influencing municipal decision-making

either through explicit or implicit orders. As the government

points out, important “sub-trends” underlay the schemes. The Jere

Realty Lease and the Freitas Lease dealt with the School

Department. The Tow List and Maggiacomo Job involved the Police

Department. The Ise and Maggiocomo Jobs both involved pawning of

municipal jobs. Both the Ronci Estate and Freitas Lots schemes

involved extortions for tax abatements. All of the offenses

involve trading jobs, contracts, and official acts for money,

-28-
contributions to Cianci’s political fund, or other items of value.

In most of the schemes, the money was solicited by, paid to, or

collected by Corrente.

In addition, the schemes often shared the same players.

Corrente, Ead, Pannone, and Autiello were all fundraisers for the

Friends of Cianci. Ead participated in the Ronci Estate, the Ise

Job, and the Freitas Lots schemes, while Pannone played important

roles in the Ronci Estate, the Freitas Lease, and Pay-to-Get-Paid

schemes. Autiello was the chief associate in the Tow List

extortion and Maggiacomo Job sale. Overall, the evidence shows

that the individual racketeering acts were not isolated events but

rather parts of a pattern of racketeering activity contemplated and

committed by an overarching RICO conspiracy to which all three

defendants, along with other co-conspirators, belonged.

“Continuity” of the pattern of racketeering may be shown

by either “a series of related predicates extending over a

substantial period of time,” or a pattern of more limited duration

where “the racketeering acts themselves include a specific threat

of repetition extending indefinitely into the future” or “the

predicate acts or offenses are part of an ongoing entity’s regular

way of doing business.” H.J., Inc., 492 U.S. at 242.

Defendants were accused of conducting a RICO conspiracy

that lasted nine years. The Tow List scheme spanned approximately

the entire period. During this time, Autiello regularly channeled

-29-
contributions to Corrente. When towers contributed too much money

under the same name, the conspirators scrambled to find other straw

contributors, or “replacement” contributors.

The Jere Realty and Freitas Lots schemes both involved

kickbacks to the defendants in exchange for pressure on the City to

grant leases. As the district court concluded, “[I]t was

reasonable for the jury to infer that additional payments would be

made in order to renew the lease[s].” The Pay-to-Get-Paid scheme

presented the same danger: “[T]he City’s habitual tardiness in

paying its vendors, and the period of time over which Freitas made

payments to expedite payment of his invoices, provided ample

justification for the jury to conclude that such payments would

continue to be made in the future.”

Evidence concerning the Ise and Maggiocomo Jobs, both

transpiring in 1996, was enough for the jury to conclude that these

bribes were part of the same, continuous pattern that jobs in the

City could be had for a price. The Freitas Lots, Freitas Lease,

and Freitas Invoices schemes revolved around deals with Anthony

Freitas, whose testimony revealed an especially active stage of the

conspiracy in and 1998 and 1999.

There is no need to go into more detail. The evidence

speaks more than enough to the conclusion that the jury could have

found the requisite “pattern of racketeering activity” here.

-30-
 D. Conspiracy

Based on the same evidence, the jury could have found a

conspiracy involving all three defendants. We reiterate that RICO

conspiracy does not require proof that a defendant “himself

committed or agreed to commit the two predicate acts requisite for

a substantive RICO offense under § 1962(c).” Salinas, 522 U.S. at

61-66. Rather, he “must intend to further an endeavor which, if

completed, would satisfy all of the elements of a substantive

criminal offense, but it suffices that he adopt the goal of

furthering or facilitating the criminal endeavor.” Id. at 65. We

have noted that "[t]he conspiratorial agreement need not be express

so long as its existence can plausibly be inferred from the

defendants' words and actions and the interdependence of activities

and persons involved." United States v. Boylan, 898 F.2d 230, 241-

42 (1st Cir. 1990). The evidence, detailed above and throughout

this opinion, amply fills this requirement.

As for Cianci, Ead's testimony placed Cianci at the head

of the Ronci Estate, Ise Job, and Freitas Lots schemes. Taped

remarks by Corrente implicated Cianci in the Freitas Lease.

Corrente's position as Cianci's Director of Administration is

itself circumstantial evidence of Cianci's conspiratorial

involvement.

Corrente was implicated in at least five of the nine

racketeering schemes. He initiated the Tow List scheme and played

-31-
a major part in maintaining it throughout the duration of the

conspiracy. Corrente received cash payments as part of the Jere

Realty, Ronci Estate, Freitas Lease, and Pay-to-Get-Paid schemes.

Testimony by Kenneth Rocha, the chairman of the towers'

association, revealed that Autiello was the point person for towers

when it came time to make contributions to Cianci's political fund.

Autiello took in the payments and reminded towers when their

payments were due. As for Autiello's part in the Maggiocomo Job

scheme, Mary Maggiacomo testified that she asked Autiello, who was

in charge of maintenance of police cruisers, to help her son obtain

a job on the City force. She delivered the $5,000 payment to him.

When her son was ultimately denied admission into the police,

Autiello refused to return the payment to Mrs. Maggiacomo.

E. Special verdict

At the government's request, the district court submitted

to the jury a special verdict form. Under the substantive RICO

count (Count Two), the verdict form contained special

interrogatories for each of the RICO predicates, listing them

separately for each defendant. For each of the RICO predicates,

the form asked the jury to check off "yes" or "no" to indicate

whether the government had proven the predicate with respect to

each defendant. As to Cianci, the jury returned the verdict form

with “no” checked for every box (except one) indicating the

government had not proven those racketeering acts. The one

-32-
unchecked box was for Act Ten (University Club); we offer no

opinion on why the jury decided to leave it blank. For Corrente,

the jury checked off "no" for all racketeering acts except Act

Eight (Freitas Lease) and Act 9(a) ("Pay-to-Get-Paid"), for which

the jury checked off "yes." For Autiello, the jury checked off

"no" for all racketeering acts except Act Twelve (Maggiacomo job),

which the jury concluded the government had proven. Ultimately,

only Corrente was convicted on Count Two, substantive RICO, and all

three defendants were found guilty on Count One, RICO conspiracy.

Defendants argue that the jury's responses to the

interrogatories in the special verdict form under Count Two (the

substantive RICO count) should bear on the verdict as to Count One

(the RICO conspiracy). They claim that the jury's negative

responses to these interrogatories indicate their rejection of the

evidence proffered by the government for each of those offenses to

which the jury responded "no." Defendants further contend that

given the jury's specific findings, the evidence is insufficient to

support the conspiracy verdict as a matter of law. They postulate

that the specific purpose of the special verdict form is to limit

the facts found at trial for the purpose of assessing on appeal the

sufficiency of the prevailing party's case. Ordinarily, when a

jury returns a general verdict of guilty on a substantive RICO

count and one of the predicate acts is later found to be legally

insufficient by a reviewing court, the conviction must be

-33-
overturned where it is impossible to determine whether two legally

sufficient predicate acts support a RICO conviction. See United

States v. Holzer, 840 F.2d 1343, 1352 (7th Cir. 1988); United

States v. Kragness, 830 F.2d 842, 861 (8th Cir. 1987).

The special verdict form allows juries to specifically

identify the predicates for the general verdict. In United States

v. Torres Lopez, 851 F.2d 520 (1st Cir. 1988), we reversed a

substantive RICO conviction where the jury's responses to

interrogatories on a special verdict form properly related to the

substantive conviction revealed that the government proved only

time-barred predicates. The defendants in that case argued that as

indicated by the special verdict, the jury found them guilty of

only two predicates. When both of those predicates were shown to

be outside the statute of limitations, we overturned the

substantive RICO conviction. Other circuits have employed the

special verdict form similarly. See United States v. Edwards, 303

F.3d 606 (5th Cir. 2002) (court used special verdict to uphold RICO

conviction as being based on two valid predicates); United States

v. Kramer, 73 F.3d 1067 (11th Cir. 1996) (money laundering

conviction cannot stand where special verdict established defendant

involvement in only foreign transactions).

The government counters that defendants' argument fails

under the doctrine articulated by the Supreme Court in Dunn v.

United States, 284 U.S. 390 (1932) and United States v. Powell, 469

-34-
U.S. 57 (1984). In both cases, the Court held that acquittals on

certain counts of an indictment play no role in the analysis of

whether there is sufficient evidence supporting the surviving

counts. Powell, 469 U.S. at 64-69; Dunn, 284 U.S. at 392-94; see

also United States v. Alicea, 205 F.3d 480 (1st Cir. 2000). The

reasoning is that a jury's decision to acquit on a particular count

or counts may well be the product of "mistake, compromise, and

lenity" and "a criminal defendant already is afforded protection

against jury irrationality or error by the independent review of

the sufficiency of the evidence undertaken by the trial and

appellate courts."10 Powell, 469 U.S. at 65-67. The Court was

concerned with the impracticality of a rule that would allow

defendants to challenge inconsistent verdicts where such a

challenge was speculative or would require inquiries into the

jury's deliberations. See id. at 68.

The defendants claim that neither Powell nor Dunn

undermines the purpose and viability of special verdict forms in

defining the universe of resolved facts. They assert that in this

case, we should exempt from our sufficiency review those pieces of

evidence that have "been conclusively contradicted[.]" Chongris v.

Bd. of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). In reviewing a

10
This rationale applies more directly to defendants' other
argument that the jury's acquittals on the substantive, non-RICO
counts should influence our review of the sufficiency of the
evidence on the RICO conspiracy count.

-35-
criminal conviction for sufficiency, we do not assess the

credibility of the witnesses, "which is the sole function of the

trier of fact." Burks v. United States, 437 U.S. 1, 16 (1978);

Torres Lopez, 851 F.2d at 527.

We have been steadfast with Powell and have repeatedly

refused to carve out exceptions to the rule. United States v.

Bucavalas, 909 F.2d 593, 595-97 (1st Cir. 1990) (adhering to Powell

rule in affirming bribery conspiracy conviction of defendant, where

jury acquitted all of the charged conspirators except defendant);

Alicea, 205 F.3d at 484 ("[I]n a single, multi-count trial,

acquittal on one or more counts does not preclude conviction on

other counts based upon the same evidence, as long as that evidence

is legally sufficient to support a finding of guilt on the count(s)

of conviction."); see also United States v. Richard, 234 F.3d 763,

768 (1st Cir. 2000); United States v. Hernandez, 146 F.3d 30, 33

(1st Cir. 1998); United States v. Crochiere, 129 F.3d 233, 239 (1st

Cir. 1997).

We are similarly hard pressed to make an exception here.

The RICO conspiracy count and substantive RICO count are separate.

The list of racketeering acts to which the jury answered

interrogatories is part of the substantive RICO count only. The

government requested the form so that if the jury did convict on

substantive RICO, the conviction would be buttressed by express

jury findings as to the two-predicate requirement. The jury

-36-
appears to have understood the two-predicate requirement, in that

it checked off two predicates (extortion conspiracies for the

Freitas Lease and “Pay-to-Get-Paid” schemes) for Corrente, who was

the only defendant convicted on the substantive RICO count. No

predicates were checked off for Cianci, and only one (bribery

conspiracy in connection with the Maggiacomo Job) was found proven

for Autiello; hence, neither was convicted of substantive RICO.

The "separate-ness" of the counts in the indictment,

however, is not the central point of contention in this issue.

Powell, 469 U.S. at 64. Defendants concede that "a person may be

convicted of RICO conspiracy and acquitted of all substantive

acts." (emphasis added). If proof of the requisite criminal

agreement exists, "whether or not the substantive crime ensues" is

irrelevant. Salinas, 522 U.S. at 65. Hence, the jury did not go

out-of-bounds by convicting on the RICO conspiracy count while

concluding the government failed to prove certain predicate

racketeering acts underlying the substantive RICO count. See

United States v. Weiner, 3 F.3d 17, 22 (1st Cir. 1993) (“[D]espite

the dismissal of the separate [substantive] counts, the jury was

entitled to consider the evidence [underlying those substantive

counts] in support of the RICO counts”).

Most instructive is United States v. Connolly, 341 F.3d

16 (1st Cir. 2003), where we upheld a substantive RICO and RICO

conspiracy conviction. The defendant contended that the

-37-
government's failure to prove an “enterprise” was evidenced by the

jury’s finding that nine of fourteen racketeering acts listed in

the indictment had not been proven beyond a reasonable doubt.

Specifically, the defendant argued that the evidence did not

establish that the charged enterprise was “continuous” or

“ongoing.” We stated that

simply because the jury found a specified
racketeering act as “unproven beyond a
reasonable doubt” does not mean that the jury
found the evidence relating to that act
unpersuasive, in combination with other
evidence in the case, on the existence of an
association-in-fact enterprise. Rather, it
may only mean that the government did not
prove a requisite element of the underlying
crime alleged as a racketeering act. . . . In
returning a finding of “unproven,” the jury
could have concluded that the evidence
underlying a [particular racketeering act],
while failing to [prove all the elements of
the crime committed by the act], nevertheless
demonstrated a corrupt gratuity evidencing the
existence of an illegal enterprise.

Id. at 26-27. The evidence relating to those acts that were found

“unproven” by the jury was still available to the jury in its

evaluation of the overall RICO charge. “That being so, the inquiry

on appeal is whether the jury, in light of the totality of the

evidence, was presented with sufficient evidence of “continuity” to

support a conviction.” Id. at 27. The jury verdict may be a

compromise reflecting evil preparations by all three defendants but

some doubt about implementation by Cianci and Autiello. In other

words, though the evidence might not have shown completed

-38-
commission of the racketeering acts, it could have led the jury to

find the requisites of a RICO conspiracy among the defendants to

commit the racketeering acts.

F. Amendment and variance

Defendants claim that the district court was only able to

deny their dismissal motions by constructively amending the

indictment. They point to the court's statement, in denying these

motions, that "it seems to the Court that the indictment alleges

that what the Defendants are accused of doing is having conducted

the affairs of the City through a pattern of racketeering

activity." Defendants also claim that post-trial, the district

court erroneously concluded that the indictment could have alleged

that the City was an innocent, unwitting participant in the

criminal enterprise. This, defendants contend, conflicts with how

they understood the indictment--that the City was a culpable

participant in the RICO enterprise--and hence constituted a

constructive amendment of the indictment.

An amendment of the indictment occurs when the charging

terms of the indictment are altered, either literally or in effect,

by the prosecutor or the court after the grand jury has returned

the indictment. United States v. Dubon-Otero, 292 F.3d 1 (1st Cir.

2002). Amending the indictment is considered prejudicial per se

and thus demands reversal. Id. at 4. The government argues that

regardless of the alleged disparity between the indictment and the

-39-
trial judge's characterization thereof, there was no constructive

amendment where the court instructed the jury "on the theory as

charged." Indeed, the court specifically instructed, without

objection from either party, that “the Government must prove that

the Defendant[s] knowingly and willfully joined the conspiracy with

knowledge of its unlawful purpose and with the intent that the

purpose would be accomplished.”

We find defendants’ claimed understanding of the illicit-

purpose RICO enterprise charged in the indictment to be both

inaccurate and disingenuous. The indictment does not compel a

reading that the City itself (or its constituent agencies) had to

be found criminally culpable, as we explain in more detail supra.

Defendants allude to United States v. Weissman, 899 F.2d 1111, 1115

(11th Cir. 1990), where the Eleventh Circuit held that the district

court’s jury charge “in effect altered an essential element of the

crime charged” in the indictment. Here, the charge was taken

largely from the indictment. No intimations by the court recast

the “essential” elements of RICO outlined in the indictment. At no

point, pre-trial or post-trial, did the district court transform

the charged association-in-fact enterprise into a legal-purpose or

legal-entity enterprise. The court’s descriptions of the

enterprise were in accord with the breadth of the enterprise

charged in the indictment and the breadth the Supreme Court has

assigned to RICO overall.

-40-
 Alternatively, defendants contend that disparities

between the indictment and the evidence resulted in a prejudicial

variance. “A variance arises when the proof at trial depicts a

scenario that differs materially from the scenario limned in the

indictment.” United States v. Villarman-Oviedo, 325 F.3d 1, 12

(1st Cir. 2003) (internal quotation marks omitted). A variance

requires reversal only when it is “both material and prejudicial,

for example, if the variance works a substantial interference with

the defendant’s right to be informed of the charges laid at his

doorstep.” Id. (internal quotations marks omitted).

First, we reiterate that the jury’s acquittals on the

substantive counts and negative decisions on the racketeering acts

listed under Count Two do not make the evidence underlying those

counts and acts irrelevant to the RICO conspiracy count. Second,

we repeat that the evidence as a whole, viewed in the light most

favorable to the verdict, is sufficient as to the RICO conspiracy

convictions for all three defendants. Accordingly, defendants’

reliance on United States v. Morales, 185 F.3d 74 (2d Cir. 1999)

(reversing RICO convictions where evidence established that

defendants had all been incarcerated early in the period of

racketeering activity alleged in the indictment), is misplaced.

The evidence at trial, covering acts that occurred from 1991 to

1999 as charged in the indictment, tracked and satisfied the RICO

elements and factual allegations contained in the indictment.

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 G. “Associate” Liability

Autiello, and Corrente by adoption, argues that the

court’s instructions on “associate” liability under RICO failed to

comply with the standard set out by the Supreme Court in Reves v.

Ernst & Young, 507 U.S. 170 (1993). The Court in Reves created the

“operation management” test for determining RICO “associate”

liability. In order to have taken part in, or associated with the

conduct of an enterprise, an “associate” must have had some part in

directing those affairs of the enterprise. Id. at 177-78. The

Court also stated that “an enterprise is operated not just by upper

management but also by lower-rung participants in the enterprise

who are under the direction of upper management.” Id. at 184. The

Court further elucidated:

Of course, the word “participate” makes clear
that RICO liability is not limited to those
with primary responsibility for the
enterprise’s affairs, just as the phrase
“directly or indirectly” makes clear that RICO
liability is not limited to those with a
formal position in the enterprise, but some
part in directing the enterprise’s affairs is
required. The “operation or management” test
expresses this requirement in a formulation
that is easy to apply.

Id. at 179.

Autiello and Corrente argue that the district court

“watered down” the government’s burden of proof in its jury

-42-
instruction on “associate” RICO liability.11 Specifically, they

claim that the instructions permitted conviction for performing

acts without control over some part of the “direction” of the

enterprise.

We find no merit in defendants’ objection. The

instructions did not misstate the law; in fact, they reflected

Reves nearly verbatim. Defendants argue that the buzz word on

“associate” liability is that an associate "direct" or be

“integral” to the affairs of the enterprise. The crucial words,

however, are “operation and management,” which effectively

11
The court instructed, in relevant part:
“I told you that the Government has to prove that a Defendant
is employed by or associated with an enterprise. A person is
considered to be associated with an enterprise if he or she
knowingly participates directly or indirectly in the conduct of the
enterprise’s affairs or business.
A person doesn’t have to have a formal relationship with or an
official position in an enterprise in order to be associated with
that enterprise.
Association may include an informal relationship or agreement
between a person and an enterprise. A person also may be
associated with an enterprise even though his or her role is a
relatively minor role, just as the case with respect to conspiracy.
. . . In order to establish that Defendant conducted or
participated directly or indirectly in the conduct of an
enterprise’s affairs, the Government must prove that the Defendant
played some part in the operation or management of the enterprise.
Conducting or participating in the conduct of an enterprise’s
affairs includes things like performing acts, function or duties
which are related to the operation of the enterprise. The
Government doesn’t have to prove that a Defendant exercised
significant control over or within the enterprise, and the
Government doesn’t have to prove that the Defendant was an upper
echelon member of the enterprise.
An enterprise is operated not only upper management but also
by lower rung participants who work under the direction of the
managers of the enterprise.”

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communicate to a jury that in order for a defendant to have been an

associate of the RICO enterprise, his participation needs to have

had “an element of direction” of the enterprise’s affairs. Id. at

178; United States v. Marino, 277 F.3d 11, 33 (1st Cir.), cert.

denied, 536 U.S. 948 (2002); United States v. Oreto, 37 F.3d 739,

750 (1st Cir. 1994). The court more than sufficiently accounted

for this requirement by instructing that the defendant must have

“played some part in the operation or management of the

enterprise.”

In general, we have fashioned the Reves “operation or

management” test in accordance with the breadth with which we must

construe RICO:

The requirement of association with the
enterprise is not strict. The RICO net is
woven tightly to trap even the smallest fish,
those peripherally involved with the
enterprise. The RICO statute seeks to
encompass people who are merely associated
with the enterprise. The defendant need only
be aware of at least the general existence of
the enterprise named in the indictment, and
know about its related activities.

Marino, 277 F.3d at 33 (citations and internal quotations omitted).

Hence, as an evidentiary matter, the government presented more than

enough to establish that, if there was an enterprise, the two, at

various times, played important roles in the direction and

supervision of the enterprise’s operations. Neither was merely

“peripherally involved with the enterprise.” The direct testimony

of Kenneth Rocha demonstrated that not only was Autiello aware of

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the general existence of the enterprise, but that he was central to

furthering the goals of the enterprise, specifically as the

collection agent for Corrente in obtaining payments from the Tow

List members. His participation in the Maggiacomo Job scheme again

evinced his awareness of the general enterprise as well as his

direct involvement in the direction and management of the

enterprise. As for Corrente, we need not rehash the evidence that

amply establishes his role in the enterprise. The fact that he was

Cianci’s right-hand man, in addition to evidence specifically

showing his directorial or supervisory involvement in individual

racketeering acts, puts him in the heartland of “associate” RICO

liability as set out in Reves.

II. The Joint Federal Bribery Conspiracy Convictions (Corrente
and Autiello)

In relevant part, the federal bribery statute provides:

(a) Whoever, if the circumstance
described in subsection (b) of this
section exists--

(1) being an agent of an
organization, or of a State, local,
or Indian tribal government, or any
agency thereof–

* * *

(B) corruptly solicits or
demands for the benefit of any
person, or accepts or agrees to
accept, anything of value from any
person, intending to be influenced
or rewarded in connection with any
business, transaction, or series of
transactions of such organization,

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 government or agency involving any
thing of value of $5000 or more. . .

* * *

shall be fined under this title,
imprisoned not more than 10 years,
or both.

(b) The circumstance referred to in
subsection (a) of this section is
that the organization, government,
or agency receives, in any one year
period, benefits in excess of
$10,000 under a Federal program
involving a grant, contract,
subsidy, loan, guarantee, insurance,
or other form of Federal assistance.

18 U.S.C. § 666(a)(1)(B). Corrente and Autiello were convicted of

conspiring to violate this statute, see 18 U.S.C. § 371, for their

roles in the Tow List scheme. The government's theory was that, in

requiring "campaign contributions" from those who wished to remain

on the police department's tow list, Corrente (in cahoots with

Autiello, who acted as the towers' agent) acted as an "agent" of

the police department within the meaning of subsection (a)(1). The

department qualified as an "agency" under subsection (b) because it

received an average of about $1 million in federal aid annually

(and never less than $10,000) between 1991 and 1999. A portion of

that aid (conferred in connection with a federal anti-domestic

violence program) was used in and around 1996 (1) to train

dispatchers for the police unit that, among their other duties,

called companies on the City's tow list when towing was needed, and

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(2) to purchase the communications and computer equipment used by

the dispatchers who made these calls.

Corrente and Autiello argue that their convictions cannot

stand because there is insufficient evidence of a connection

between their conduct and the federal funds received by the police

department. The district court instructed the jury, without

objection, that such a connection is required. The court described

the connection (in relevant part) as follows: "[T]he Government

must . . . prove that there is some connection between the alleged

bribe and the federal funds received by the local government or

agency . . . ." Corrente and Autiello contend that the "federal

funds" evidence described in the preceding paragraph is patently

inadequate to ground a finding that such a connection existed in

this case.

The two concede that the statute itself does not require

that the offense conduct have an effect on the federal funds. See

Salinas, 522 U.S. at 61 ("[A]s a matter of statutory construction,

§ 666(a)(1)(B) does not require the Government to prove the bribe

in question had any particular influence on federal funds . . . .")

(emphasis supplied). They also acknowledge that, at the time of

oral argument, a post-Salinas circuit split had emerged over

whether, as a statutory and/or constitutional matter, some

connection between the offense conduct and a federal interest (if

not federal funds themselves) was required. Compare, e.g., United

-47-
States v. Zwick, 199 F.3d 672, 682-88 (3d Cir. 1999) (treating the

statute as having been enacted under the Spending Clause and

holding, in part because the Constitution requires that

"legislation regulating behavior of entities receiving federal

funds must . . . be based upon a federal interest in the particular

conduct," (citing South Dakota v. Dole, 483 U.S. 203, 207 (1987)),

that the statute requires the government to prove that a federal

interest is implicated by the offense conduct), and United States

v. Santopietro, 166 F.3d 88, 92-93 (2d Cir. 1999) (similar,

endorsing the post-Salinas vitality of prior Second Circuit law

interpreting the statute to require that the offense conduct

threaten the integrity and proper operation of a federal program),

with, e.g., United States v. Sabri, 326 F.3d 937, 940-53 (8th Cir.

2003) (no connection between the offense conduct and a case-

specific federal interest is required by either the Constitution or

the statute, which was lawfully enacted under the Necessary and

Proper Clause and not the Spending Clause).

Unsurprisingly, Corrente and Autiello prefer the approach

exemplified by Zwick and Santopietro. They emphasize that Salinas

explicitly left open whether some connection between the offense

conduct and a federal interest is required for the statute to be

constitutionally applied. See 522 U.S. at 60-61 (declining to

decide the broader constitutional issue because the statute was

constitutionally applied on the case facts). They argue that

-48-
requiring a connection such as the one identified in Zwick and

Santopietro is necessary to maintain an appropriate state-federal

balance in a criminal law area that has been the traditional

province of the states.

While these appeals were under advisement, the Supreme

Court granted a writ of certiorari in Sabri and resolved the

circuit split in favor of the position adopted by the Eighth

Circuit. See Sabri v. United States, 124 S. Ct. 1941, 1945-49

(2004). If error can be "plain" within the meaning of Fed. R.

Crim. P. 52(b) even if it only becomes so while the case in which

it is raised is on appeal, see Johnson v. United States, 520 U.S.

461, 467-68 (1997), we see no reason why it should not also be

"patent" for purposes of applying the Zanghi principle, see 189

F.3d at 79-80, discussed and applied supra at 18-19. Because

application of Zanghi requires that we disregard the nexus

instruction upon which Corrente and Autiello base their sufficiency

challenges to their joint federal bribery conspiracy convictions,

we must reject those challenges.

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