United States v. Vincent A. Cianci, Jr., Frank E. Corrente, and Richard E. Autiello

HOWARD, Circuit Judge,

concurring in part and dissenting in part.

The majority has skillfully analyzed a number of very difficult issues, and I concur in parts II and III of its opinion, which affirm Corrente’s and Autiello’s non-RlCO-related convictions. As to the RICO-related convictions, I am not per*108suaded that the majority correctly disregards the jury’s interrogatory answers in conducting its sufficiency review, see ante part I-E, or that it has convincingly fended off defendants’ argument that a municipal entity, which is incapable of being found to have acted with an unlawful purpose, cannot coherently be regarded as a member of an associated-in-fact RICO enterprise that is defined by the shared unlawful purposes of its associates, see ante part I-B. But even if I assume that the jury’s interrogatory answers are irrelevant and that municipal entities can be named as associates of the type of RICO enterprise that was alleged in this case, I still must dissent from the majority’s conclusion that there is sufficient record evidence to sustain defendants’ RICO-related convictions. In my view, the RICO-related judgments (including the forfeiture judgment) should be reversed and this matter should be remanded for resentencing.

The majority has done an excellent job of summarizing the relevant legal principles, the nature of the associated-in-fact RICO enterprise alleged in this case, and the pattern of racketeering activity underlying the RICO and RICO conspiracy allegations. See ante at 78-81 & 81-82. I adopt this discussion by reference and turn to the particulars of the argument I find persuasive.

Defendants contest their RICO-related convictions, in part, on the ground that the evidence introduced at trial in support of the nine alleged schemes was inadequate to establish that the schemes were conducted through the amalgam of persons and entities alleged in the indictment to have constituted the RICO enterprise. Defendants premise this argument on an underlying assertion that there was no proof to ground an inference of a shared purpose among defendants and all of the municipal entities named as associates of the enterprise — a required finding (at least usually, see ante at 82) if an unlawful criminal association is to be regarded as a RICO enterprise. Defendants say that their position is bolstered by two “findings” made by the district court and not contradicted by the government (or at least not clearly so): (1) “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), and (2) “none of [defendants’] acts ... resulted in any significant disruption of a Governmental function.” Thus, the argument goes, even if we were to assess the adequacy of the evidence supporting the RICO convictions by looking at the whole record and construing it in favor of the government (despite the nine judgments of acquittal entered by the district court and the special interrogatory answers collectively indicating that much of the government’s RICO case was not “proven”), we would find only a few, relatively inconsequential interactions between the defendants and these municipal entities during the nearly eight years the enterprise was alleged to have existed.

The government’s response tracks the grounds on which the district court rejected the defendants’ motions for judgments of acquittal: (1) we should follow the Ninth Circuit and hold that “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); and (2) the jury’s enterprise finding was sufficiently supported by evidence that Cianci and Corrente (Autiello, who was not a municipal employee, is not mentioned) “using the Office of the Mayor and the Office of Director of Administration as base camps, ... controlled ” the municipal entities named as enterprise associates. The government’s first sugges*109tion, that we reject defendants’ argument on the basis of the Feldman principle, faces insurmountable obstacles. This court has identified the “common purpose” requirement discussed in United States v. Turkette, 452 U.S. 576, 580-83, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), as one of the principal tools a factfinder should use to distinguish a RICO enterprise from an ad hoc criminal confederation. See ante at 82; see also Ryan v. Clemente, 901 F.2d 177, 180 (1st Cir.1990) (emphasizing that the common purpose requirement is necessary to “limit the potentially boundless scope of the word ‘enterprise’ ” and thereby “distinguish culpable, from non-culpable, associations”).1 Indeed, we have applied the requirement (albeit without acknowledging Feldman) in a case involving an unlawful purpose RICO association-in-fact involving corporate legal entities. See United States v. London, 66 F.3d 1227, 1243-45 (1st Cir.1995). Moreover, and decisively, the district court instructed the jury without objection from the government: “[I]t 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.” The government has not attempted to reconcile Feldman with Turkette, Ryan, London, or our other cases applying Twrkette. See ante at 82. Thus, as the majority concedes, we cannot disregard the common-purpose instruction in analyzing defendants’ sufficiency ehal-lenges. See ante at 84-85 (citing United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir.1999)). The question whether Feldman correctly states the law must be left to another day.2

This leaves the government’s undeveloped assertion — an assertion that the majority finds convincing — that the jury’s enterprise finding is sustainable because there was evidence that Cianci and Cor-rente exercised “control” over the municipal entities named as members of the enterprise. Because the common-purpose instruction binds for purposes of our analysis, I shall assume that the government intends by this assertion to argue that such “control” is sufficient to impute to the entities the unlawful purposes of those alleged to control them — i.e., Cianci and Corrente. Compare London, 66 F.3d at 1243-45 (involving closely held corporations operated by the defendant and alleged to be members of his unlawful associated-in-fact RICO enterprise); United States v. Masters, 924 F.2d 1362, 1366-67 (7th Cir.1991) (involving a law firm and two police departments associated in fact with those who controlled or manipulated them). I also shall assume that it would be fair to sustain the defendants’ convictions on evidence of such control, notwithstanding the absence of jury instructions explaining that a municipal entity’s “purposes” may be so ascertained. Even so, I do not see how the convictions can stand.

In my view, there is no proof that Cianci and Corrente so controlled the activities of all the municipal entities alleged to be associates of the charged enterprise that the two’s shared criminal purposes are *110reasonably imputed to each such entity. There is no evidence that, for example, Cianci and Corrente themselves could provide those willing to pay bribes with jobs in City departments over which they lacked hiring authority; or that they could contractually bind City departments under separate leadership; or that they could sell City property; or that they could grant or deny construction variances. Nor did the government show that the persons, committees, and boards within the municipal departments, offices, and agencies whose assistance the schemes required abdicated their decision-making responsibilities to Cianci or Corrente.3 In short, neither Cianci nor Corrente was shown to have so dominated the affairs of the departments, offices, and agencies claimed to be associated with the unlawful purpose enterprise that each of these municipal entities might fairly be found to have been an alter ego of Cianci or Corrente with respect to the transactions in question.4 Rather, the evidence showed only that Cianci and Corrente periodically used the power inherent in their positions to influence (or attempt to influence)5 the deei-*111sions of other municipal actors — actors who, with the exceptions noted in the preceding footnote, were not shown to be privy to, let alone supportive of, the alleged enterprise’s purposes.

The question arises why this evidence of influence is not sufficient to make the persons and entities influenced part of the alleged enterprise.' The answer, I believe, lies in the fact that we are here deciding what is required for membership in an associated-in-faet RICO enterprise defined only by the common unlawful purposes of its members. This is a highly ramified decision with implications, criminal and civil, that extend far beyond this case. Were we to permit a person or entity to be named part of an unlawful purpose enterprise on mere evidence that the person or entity acceded to a mobster’s request (but without knowledge of the purposes underlying the request), we would be heading down the slippery slope against which then-judge Breyer warned 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 conséquences 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.1997).6 As Ryan suggests, membership in an unlawful purpose -RICO enterprise implies potential culpability under the RICO statute. See 901 F.2d at 181; see also 18 U.S.C. § 1962(d) (allowing for the imposition of RICO liability under conspiracy principles). Thus, as a matter of logic (not to mention due process), one who lacks the mental state necessary for the imposition of RICO liability because he is unaware of the enterprise or its purposes also lacks the mental state necessary to be part of a RICO enterprise that is defined solely by the shared, culpable mental state of its members. This is ultimately what, in my view, dooms the government’s enterprise allegations in this case.

There was in this case significant evidence of public corruption. Perhaps the *112government could have proved that Cianci and Corrente ran the Office of the Mayor or the Office of the Director of Administration as a RICO enterprise. Or perhaps the defendants (or, more likely, a subset thereof) might have been shown to be members of one or more smaller, associated-in-fact RICO enterprises. But the government successfully persuaded the grand jury to cast a wider net and to allege that the persons named as enterprise associates, along with the campaign contribution fund, the City of Providence, and many of its departments, offices and agencies, functioned as a de facto organized crime syndicate. Framing the case in this way permitted the government to allege that defendants were responsible under RICO’s conspiracy provision for all of the illegal and unethical conduct put on display in this trial — even that in which they were not shown to have personally participated.7 But this broad case theory obligated the government to prove that each municipal entity alleged to have engaged in conduct that constituted part of the “pattern of racketeering activity” identified in the indictment was itself a member of the enterprise. As another court has put it:

[I]t must be stressed that the government, through its ability to craft indictments, is the master of the scope of the charged RICO conspiracy.... [RICO’s conspiracy provision] is capable of providing for the linkage in one proceeding of a number of otherwise distinct crimes and/or conspiracies through the concept of enterprise conspiracy. The government, through the vehicle of the indictment, provides the linking conspiratorial objective of a specific RICO violation. The “specific” violation can be broad or narrow. It is the prosecution which sets the parameters to which a RICO conspiracy trial must be confined; having set the stage, the government must be satisfied with the limits of its own creation.

United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir.1990) (quoting United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.1986)) (internal quotation marks omitted; emphasis in original).

RICO is a powerful weapon that can cause mischief if abused by an overzealous prosecutor.8 While I do not doubt that RICO will sometimes apply in cases of political corruption, I fear the consequences of making the statute too easy to invoke — or too easy to apply broadly — in the political context, where persons who have made a contribution to a politician routinely receive favorable treatment from offices or agencies over which the politician has influence. I therefore agree with Justice Breyer that we must place comprehensible limits on RICO’s reach and that an important way of cabining the statute is to require true culpability before one may be named part of an associated-in-fact RICO enterprise defined by the common unlawful purposes of its constituents. See Ryan, 901 F.2d at 180-81. Such a limitation helps to ensure that eases involving claims of political corruption will not also inevitably give rise to a RICO charge, and that cases involving multiple acts of common law fraud will not also inevitably give rise to civil liability under the statute.

*113In this case, the government proved only that many of the municipal entities named in the indictment were used as tools by defendants. For reasons I have explained, this is not enough to prove that these entities were part of a RICO enterprise defined only by the shared unlawful goals of its members. Thus, the government failed to prove the existence of the enterprise alleged in connection with the RICO counts, and the RICO convictions cannot stand. See United States v. Morales, 185 F.3d 74, 80-82 (2d Cir.1999) (reversing on sufficiency grounds where the proof failed as to the specific enterprise charged in the indictment); Weissman, 899 F.2d at 1113-15 (vacating a conviction obtained after the trial court constructively amended the indictment in a supplemental jury instruction by permitting the jury to find a different enterprise than that charged in the indictment).

I respectfully dissent from part I of the majority opinion and would not reach the issues addressed in parts IV-VI (which are rendered immaterial by my conclusion that the defendants’ RICO-related convictions must be reversed).

. Ryan, which was authored by then-Judge Breyer, involved a civil RICO claim, but precedent generated in civil RICO cases applies to criminal RICO cases. See United States v. Shifman, 124 F.3d 31, 35 n. 1 (1st Cir.1997).

. Even under the Feldman approach, the court still would face the question whether entities not controlled by those accused of operating the alleged association-in-fact enterprise are properly considered part of such an enterprise. For the reasons that follow, I do not think that they are. Thus, my conclusion that the Feldman rule does not apply under the facts of this case is not outcome determinative.

. This statement is subject to the following two qualifications. First, the jury could have found that Corrente himself had the ability to dictate which towers were placed on the police department’s tow list. Second, the jury could have found that the Board of Tax Assessment Review was effectively controlled by Cianci and Corrente through the corrupt machinations of RICO co-conspirators Joseph Pannone (BTAR’s Chairman) and David Ead (BTAR's Vice-Chairman).

. By this statement, I do not mean to imply that those municipal actors to whom Cianci and Corrente directed their successful requests and demands (compare infra note 5) always acted within standard operating procedures or even lawfully. To the contrary, as the majority explains it:

[T]he 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. Ante at 85 n. 3. But importantly, even in connection with these latter two schemes, Sepe and Dunham were not shown to have known of and willingly joined the alleged RICO enterprise conspiracy. Nor was there a basis for finding that a majority of the Board of Contract and Supply, the entity which ultimately voted to accept the Jere Realty lease, did so for purposes of furthering the alleged RICO enterprise conspiracy, or even with knowledge that it was ratifying a contract that had been formed in disregard of standard operating procedures.

.The majority acknowledges that Cianci and Corrente "did not always get their way....” Ante at 87. As the majority notes, there was uncontradicted evidence that, in connection . with the Freitas Lots scheme, Cianci was displeased that elements within the Providence Redevelopment Agency, the entity empowered to sell the lots, did not sufficiently accede to his wishes. See id. n. 7. There also was un-contradicted evidence that, in connection with the University Club scheme, Cianci was angered when members of the Providence Building Board of Review ignored his wishes and granted the club some of the variances that it sought. See id. Finally, there was *111uncontradicted evidence that, 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. See id.

The majority suggests that this evidence "does not defeat the integrity of the charged enterprise” because the jury could have concluded that "these glitches in the schemes only meant that certain substantive crimes went uncompleted....” Id. With respect, I think that the evidence is more telling on the point in question — whether there was sufficient evidence that Cianci and Corrente so controlled the Providence Redevelopment Agency, the Providence Building Board of Review, and the Department of Public Safety that their unlawful purposes should be imputed to these entities — than the majority acknowledges. There was, after all (and as the majority concedes, see ante at 84), no other evidence from which the jury might have found that defendants controlled these agencies (or at least relevantly so).

. To illustrate, suppose there was evidence that a young law school graduate made a $5,000 “campaign contribution” to Cianci and asked for a recommendation to the hiring partner of a Providence law firm that does a substantial amount of city business. Suppose further that there was evidence that Cianci called the firm’s hiring partner and asked that the firm give serious consideration to hiring the young lawyer. If the firm did so, would it become a member of the common purpose enterprise alleged in this case? If the answer is "no” (as I think it clearly should be), on what principled basis can we find that the Department of Planning and Development— the agency that created a temporary position for Christopher Ise at the request of Cianci— was proved to be part of the enterprise?

. For example, Autiello was responsible under RICO for the unlawful conduct underlying the Freitas Lease and Freitas Invoice schemes — schemes on which the jury returned substantive convictions but in which he was not involved — on the theory that he was a member of a conspiracy to conduct the enterprise that carried out these schemes.

. I am speaking generally here and in no way intend to impugn those who brought this case. Indeed, there is no reason to doubt that the government’s enterprise allegations were made in a good faith attempt to comply with circuit precedent in this tricky area of the law.