concurring in part and dissenting in part.
I agree with much of Judge Mahoney’s excellent opinion in this case. Nevertheless, I dissent in part.
I dissent on the following issues:
1. From my review of the evidence, I do not believe that the government presents sufficient evidence to support the convictions of Corallo and Santoro on the loansharking conspiracy (predicate act 17 and count 22; see majority op. at 532).
2. Indelicate suffered convictions for participation in a RICO conspiracy (count one) and the substantive RICO offense of participating in an enterprise through a pattern of racketeering (count two). The majority has set aside the substantive RICO violation (count two) as outside the statute of limitations (majority op. at 534). In my view, the RICO conspiracy conviction against Indelicate cannot stand because the evidence is insufficient to tie the Commission members to the alleged predicate acts of Indelicate — the Galante murders.
In discussing the sufficiency of the evidence, I believe it proper to observe that because the defendants may have been shown to belong to the La Cosa Nostra does not justify putting them in jail for one hundred years on evidence that does not establish guilt beyond a reasonable doubt.
While concurring on other legal issues, I express disagreement with the reasoning underlying these determinations. The panel is bound by the precedent of the in banc court’s ruling in United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989) that the simultaneous Galante killings may constitute a “pattern” of racketeering activity. While I am bound by that decision, I express disagreement with it. Further, the panel affirms the RICO conspiracy conviction of Indelicate as within the five-year statute of limitations for a RICO conspiracy on grounds that criminal conduct by Indelicato’s coconspirators (the Commission), which continued beyond the 1979 Ga-lante murders, serve to avoid the lapse of the statute of limitations. This holding derives from the analysis of United States v. Persico, 832 F.2d 705 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). Again, while bound by that decision, I express disagreement with it.
Discussion
A. Evidentiary Issues on Which I Dissent
1. The Loansharking Conspiracy
The jury convicted two of the defendants, Corallo and Santoro, of conspiracy to loanshark. That conviction should be cast aside. It is inadequate because, upon examination, the complete wiretaps fall short of establishing the agreement to participate in loansharking.
The majority’s reliance on the recorded statements of Avellino (Corallo’s driver) is misplaced. The majority quotes only the last sentence of Avellino’s understanding of an agreement reached by the Gambi-no/Lucchese representatives as to DiLeo’s activities on Staten Island.
What I meant, what he [Jimmy Brown, a Gambino representative at a Lucch-ese/Gambino meeting concerning the Di-Leo matter] meant, to say, he doesn’t want him to go out, uhh, bookmaking or shylocking or, or, uhh, running games or anything else like that. He says, uh, ‘On....’ You know, ‘On his own, on his own ’ he meant to say.
See majority op. at 532.
However, several days later Corallo met directly with DiLeo and the following conversation was recorded.
CORALLO: * * * You don’t pay attention to that son-in-law of yours, you hear.
DiLEO: No, I’m not worried about him. You know what the trouble is, they’re bullshitting that, you know, I’m with nobody, and nobody, you know. CORALLO: They’re right.
DiLEO: They’re right.
CORALLO: They’re right. You say they’re right.
DiLEO: Right.
CORALLO: They’re somebody, they’re full of shit.
*545DiLEO: Right, but what you suppose ...
CORALLO: Let them come and tell me.
DiLEO: Right. Weren’t you supposed to settle this with him?
CORALLO: It’s all settled, it’s all settled.
DiLEO: There’s no problem, I got no obligation to him.
CORALLO: You got no obligations to nobody. You listening?
DiLEO: Right. And if any ...
CORALLO: And if they come to you, they, they want a favor or something, you, you’ll look into it.
DiLEO: Right.
CORALLO: And you check with us.
DiLEO: Right. But I gotta come back.
CORALLO: Don’t forget.
DiLEO: But I come back to you. (Emphasis added.)
Defendants-Appellants Joint Appendix, Vol. l-A-362.
Just what does all this virtually incomprehensible speech mean? Corallo’s admonitions to DiLeo that he “is with nobody and nobody” and “[y]ou got no obligations to nobody” may indicate that DiLeo is on his own as to any activity he may engage in on Gambino turf. In this light, Avelli-no’s ambiguous narration of Brown’s remarks that “he doesn’t want him [DiLeo] to go out * * * bookmaking * * * [o]n his own, on his own,” implies that DiLeo is being told to work with the Gambino, not Lucchese family. Certainly, nowhere in the taped conversations do either Santoro or Corallo indicate an agreement to involve themselves in a loansharking operation on Staten Island.
The best that can be gleaned with certainty from the tapes is that Corallo and Santoro agreed to function, and did function, as referees between the Gambino and Lucchese families. It seems, however, a large step to say that these referee activities constitute a “conspiracy to loan shark.” To the contrary, it appears that Corallo and Santoro’s main object in negotiating DiLeo’s difficulties was to prevent an internecine family battle, not to ensure continued loansharking activity. Not only is the evidence devoid of any suggestion that Corallo and Santoro were to receive a benefit from DiLeo’s continued activities, it is not even clear that their aim was to facilitate illegality. See United States v. Peltz, 433 F.2d 48, 51 (2d Cir.1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971) (finding a conspiracy where the purpose of the alleged illegal action is to impair the proper functioning of the government).
That the Commission’s role as peacekeeper among the families should subject its officers to criminal liability for all crimes engaged in by any individual or family member of the Mafia would eviscerate the requirement of improper intent in our conspiracy laws. See United States v. Zambrano, 776 F.2d 1091, 1094 (2d Cir.1985) (“To be found part of a conspiracy, [defendant] must have ‘in some sense promote[d] their venture himself, [made] it his own, [had] a stake in its outcome.’ ”) (citation omitted). While Corallo and Santoro had a stake in preventing a family feud, the evidence fails to reveal any interest, pecuniary or otherwise, they may have had in DiLeo’s further actions in Staten Island, apart from avoiding further turf quarrels.1 In my view, the garbled conversations do not, and cannot, add up to proof beyond a reasonable doubt of the existence of a loansharking conspiracy.
2. Whether the Galante Killings Can Be Tied to the Commission Enterprise.
I cannot agree that adequate proof exists of the connection between the Galante murders and the Commission enterprise. The government’s proof rests, in my view, on an analogy to the movie, “The Godfather.” However, a movie script does not constitute *546the kind of proof required to sentence men to prison for one hundred years.
Testimony that the “common law” of the La Cosa Nostra requires Commission authorization before a family boss can be killed does not prove that the “law” was observed in Galante’s case. Similarly, testimony by Fred Christopher that Pérsico had “voted against” Galante’s murder does not amount to proof that the rest of the Commission voted yes. The government's further assertion that Indelicate met at the Ravenite Social Club to be congratulated by other Commission members for a job well done rests on speculation and inference. No evidence sets out their conversation. The inference urged by the majority rests, in my view, upon an interesting but unproved scenario. Finally, the testimony of an undercover agent that the Bonanno family had been suffering from internal dissension, and that following Galante’s death the Commission “reorganized” the family under another chieftain, adds nothing to the case when reorganization was inevitable upon Galante’s death.
B. Legal Issues on Which I Concur
I now discuss briefly my views on legal issues upon which I am obligated to concur because of precedential requirement, notwithstanding that I entertain doubts about the validity of those dispositions.
1. Indelicato’s Participation in the Galante Murders Does Establish a Pattern of Racketeering to Support the RICO Conspiracy Conviction.
Based on an in banc determination, the majority holds that Indelicato’s simultaneous murders constitute a pattern for the purposes of RICO. While the Second Circuit is not alone in holding that a pattern of racketeering activity can exist where several acts are committed in the course of one scheme, there is another view. The Supreme Court, in its seminal decision, Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985), defined pattern as conduct where both “continuity plus relationship are present.” In the Eighth Circuit, several related acts in the furtherance of one criminal goal do not fulfill this continuity requirement. Rather, “something more than a single scheme is required in order to establish a pattern of racketeering activity.” Terre du Lac Ass’n, Inc. v. Terre du Lac, Inc., 834 F.2d 148, 149 (8th Cir.1987) (citing Superior Oil Co. v. Fulmer, 785 F.2d 252, 257 (8th Cir.1986)).
I believe the Eighth Circuit decisions properly mirror the statutory language. The three simultaneous Galante murders amounted to a single scheme, and thus would not constitute a pattern of racketeering activity under RICO. This construction is, I believe, more consonant with Congressional intent and accords greater respect to the plain language of the RICO statute.
2. Indelicato’s Claim that his RICO Conspiracy Conviction is Barred by the Statute of Limitations.
Even if the murders constituted a pattern, the prosecution for conspiracy is time barred.
This court is bound by its prior decision in United States v. Persico, 832 F.2d 705 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). The Pérsico court, confronted with the question of when the statute of limitations begins to run on a RICO conspiracy, analyzed the statute in a manner consistent with other conspiracy statutes not requiring proof of overt acts. The court thus held that the statute of limitations, as in a narcotics distribution conspiracy or Hobbs Act conspiracy, does not begin to run until the accomplishment or abandonment of the conspiratorial objectives. While bowing to the dictates of stare decisis, I nevertheless must express my disagreement with the reasoning in that opinion.
I am unconvinced that the principles governing the fixing of statutes of limitations in non-overt act conspiracies should be adopted and applied mechanically to RICO. It is true that where a conspiracy statute does not require the perpetration of an overt act, the limitations period does not begin to run until the conspiracy’s objectives have been “accomplished or aban*547doned.” United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir.1980). But unlike other non-overt act conspiracies, RICO expressly requires that a defendant personally commit or agree to commit the predicate acts of racketeering in furtherance of the enterprise. Indeed, the Second Circuit has emphasized this requirement in United States v. Teitler, 802 F.2d 606 (2d Cir.1986), and United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984), thus distinguishing its treatment of a RICO conspiracy from other non-overt act conspiracies based on violations of antitrust or narcotics statutes.
I believe the requirement of personal action (or agreement to act) on the part of each defendant is a limiting principle which should be incorporated into all phases of RICO analysis. The doctrines of conspiratorial liability are broad. The RICO statute is loosely worded and contains almost limitless potential for expansive interpretation. A complete grafting of the former principle upon the latter statute presents, I believe, a frightening prospect.
Under Pérsico, prosecutors can bootstrap a conspiracy charge on a defendant’s substantive act committed outside the five-year limitations period by linking it to acts committed by others within the statutory period. This linkage brings both offenses within the statute of limitations. Indelica-to’s case provides a disturbing paradigm. Even assuming that the 1979 murders were performed at the Commission’s instance, it is unclear that Indelicate continued as an associate involved in Commission affairs. However, to convict, the jury needed only to determine that Indelicate did not affirmatively disassociate himself from the Commission conspiracy. Such determination brings the 1979 murders within the five-year limitations period by making Indelicate responsible for the many predicate acts committed by other Commission members. It is wrong to incorporate general conspiracy principles onto the RICO statute where such gross expansion of criminal liability results, without proof that the defendant engaged in any criminal activity.
Conclusion
For the reasons stated above, I would set aside the convictions of Corallo and Santoro on loansharking and I would enter a judgment of acquittal of charges made against Indelicate.2
. Corallo’s comment to DiLeo that ”[a]nd if they come to you, they, they want a favor or something, you, you'll look into it. * * * And you check with us,” does not establish that whatever loansharking DiLeo is going to engage in in the future must be monitored and reported back to Corallo. Rather, it supports the notion that Corallo intends to involve himself in DiLeo’s affairs only insofar as they create potential conflict with the Gambino family.
. This acquittal is not to say that Indelicate goes free because of technicalities. In fact, if he is a murderer, the state of New York should have prosecuted him, and I believe can still do so.