This appeal concerns primarily the extent of the Government’s obligation to provide notice in a bill of particulars of uncharged acts of racketeering it intends to prove to obtain a conviction for violation of the Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986). The issue arises on an appeal by Harry Davidoff from a judgment of the District Court for the Eastern District of New York (Joseph M. McLaughlin, Judge) convicting him, after a jury trial, of one count of conspiracy to violate the RICO statute, in violation of 18 U.S.C. § 1962(d), and four counts of extortion offenses, in violation of 18 U.S.C. § 1951 (1982). Because we conclude that in the circumstrances of this case it was error not to grant the defendant’s request for a bill of particulars, we reverse and remand for a new trial.
Facts
This case concerns extortion perpetrated against air freight forwarders operating at John F. Kennedy International Airport (JFK). The extortion was orchestrated and carried out by members of the Lucchese Crime Family, which the Government alleged was a RICO “enterprise.” 18 U.S.C. § 1961(4). The extortionate payments were extracted in return for labor peace, frequently by threatening to have labor unions enforce to the hilt the onerous terms of their collective bargaining agreements. Once an employer made the requested payments, the unions moderated
Defendant-appellant Harry Davidoff was a vice-president of Local 851, International Brotherhood of Teamsters. He had previously founded Teamsters Local 295. These locals represented clerical workers and truckers, respectively, employed by air freight and trucking companies handling air freight business at JFK. There was evidence that Davidoff in practice had authority to make decisions concerning the actions of both unions.
The 28-count indictment originally charged Davidoff and nine co-defendants with a RICO conspiracy and various extortion offenses. Before trial, three co-defendants pled guilty, and the charges against one were severed. Five co-defendants pled guilty during the trial. Trial continued against Davidoff alone on a redacted indictment limited to the five counts that named him as a defendant — one count of RICO conspiracy and four counts of extortion offenses. The RICO conspiracy count alleged a “pattern of racketeering activity,” 18 U.S.C. § 1961(1), (5), consisting of acts of extortion, in violation of 18 U.S.C. § 1951, and unlawful payments to unions, in violation of 29 U.S.C. § 186 (1982 & Supp. Ill 1985). The RICO conspiracy count further alleged that it was part of the conspiracy to commit extortion offenses and that these offenses “included, but were not limited to,” the violations set forth in the four remaining counts of the indictment. These four counts all alleged extortionate demands directed in one way or another at Air Express International Corp. (“AEI”). Two of these extortion counts charged a conspiracy and an attempt to extort money from AEI, Consolidated Freightways, Inc. (“CF”), and CF’s subsidiary, CF Air Freight (“CFAF”). The theory of these two counts was that the defendants had threatened to block a proposed merger of AEI and CFAF unless they received money from the principals of the companies to the proposed merger. By virtue of their collective bargaining agreements, Locals 295 and 851 had the power effectively to block any merger that purported to enable a company acquiring AEI to use members of other unions to handle AEI’s work. The other two extortion counts charged a conspiracy and a completed extortion of money from AEI alone. The theory of these two counts was that the defendants demanded and received payments from AEI primarily under threat of strict enforcement of the locals’ collective bargaining agreements.
Prior to trial Davidoff and his co-defendants moved under Fed.R.Crim.P. 7(f) for a bill of particulars, asking the Government to “state with particularity the unspecified violations indicated [in the RICO conspiracy count] by the phrase ‘but were not limited to.’ ” The Government opposed this request on the ground that the information sought was “evidentiary in nature.” Judge McLaughlin denied this and most other aspects of the request for a bill of particulars, requiring the Government to supply information concerning only securities fraud counts, which did not name Davidoff as a defendant. United States v. Santoro, 647 F.Supp. 153, 188 (E.D.N.Y.1986). The District Judge’s ruling did not deal explicitly with the request for identification of the unspecified extortion offenses. He noted that providing much of what was sought by the entire request for a bill of particulars would reveal the Government’s proof and that some of the information requested was already contained in documents previously made available to the defendants.
At trial, over Davidoff’s objection, the Government was permitted to introduce evidence of extortions directed against three air freight companies, Pandair, Randy International, and TAT, Inc. None of these companies had been identified in the indictment, and none of the extortions aimed at them involved AEI. The Government asserted that these extortions constituted other acts of racketeering. Defendant objected on the ground that he had not been informed that the Government would seek to prove extortions against these three companies. The objections were overruled, though the basis of admissibility was not specified. Later, in the course of denying a motion for a new trial, the District Judge indicated that the evidence of extortion
When the case was submitted to the jury, Judge McLaughlin charged that the element of a pattern of racketeering activity required a finding that the defendant agreed to commit at least two of the specified racketeering acts, referring to the four extortion offenses directed against AEI, which were alleged as separate counts in the indictment. The jury found Davidoff guilty of the RICO conspiracy count and the four extortion counts. He was sentenced to twelve years’ imprisonment, fined $125,000, and ordered to forfeit $25,000.
Discussion
The principles governing requests for a bill of particulars are well settled. A bill is appropriate to permit a defendant “to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) (citations omitted) (per curiam). The prosecution need not particularize all of its evidence. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974). The decision to grant or deny a bill of particulars is within the sound discretion of the district court. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984).
These principles must be applied with some care when the Government charges criminal offenses under statutes as broad as RICO. With the wide latitude accorded the prosecution to frame a charge that a defendant has “conspired” to promote the affairs of an “enterprise” through a “pattern of racketeering activity” comes an obligation to particularize the nature of the charge to a degree that might not be necessary in the prosecution of crimes of more limited scope. In this case the indictment charges a RICO conspiracy of seven
years’ duration carried out through various extortion offenses. The indictment puts Davidoff on notice that he will be obliged to defend against extortionate schemes directed at one company, AEI, and companies associated with it in contemplation of a merger. At trial Davidoff is then confronted with evidence of extortions aimed at entirely different companies. Though we agree with the Government that even in a RICO case it is not obliged to disclose before trial all of its evidence, we believe the trial judge exceeded his discretion in this RICO prosecution by denying a bill of particulars identifying at least the victims of discrete extortionate schemes that the prosecution intended to prove. Cf. United States v. Bortnovsky, supra. We do not mean to imply that even in a RICO case the prosecution must always disclose in advance of trial every act it will prove that may violate some criminal statute. But here it is simply unrealistic to think that a defendant preparing to meet charges of extorting funds from one company had a fair opportunity to defend against allegations of extortions against unrelated companies, allegations not made prior to trial.
Bagaric, on which the Government relies, is not to the contrary. In that case one defendant objected to evidence of a 1978 plan to bomb a church. He contended that this plan had not been alleged as an act of racketeering. However, the indictment explicitly alleged a 1979 attempt to murder the priest of that church by mailing a bomb to him. Bagaric held that evidence of the prior plan to kill the priest by bombing his church was properly admissible. Since the defendant was on notice that he would have to defend against charges of attempting to kill the priest by means of bombing, there was no unfair surprise in not identifying before trial evidence of the planning of an earlier attempt. Moreover, and perhaps more important, the challenge in Bagaric was to the adequacy of the notice supplied by the indictment. We specifically noted that a claim concerning information needed for trial preparation “is more appropriately addressed to a bill of particulars.” 706 F.2d at 61.
One other matter requires brief mention since it may arise again upon retrial. The Government offered the testimony of Henry Hill, a long-time associate of Paul Vario, whom Hill described as a boss of a Lucch-ese Family crew. In response to defendant’s objection, the Government represented in its proffer that Hill would say “that Harry Davidoff was partners with another member of the enterprise in running Kennedy Airport.” Though Hill testified that he overheard members of the Lucchese Family discussing the need to speak with Davidoff about union problems at the airport, his testimony fell short of living up to its advance billing. With Hill’s testimony now fully set forth in the trial transcript, it will be up to the trial judge at retrial to determine whether this testimony has sufficient probative force to outweigh the prejudice arising from Hill’s account of activities in which Davidoff was not involved.
The judgment of the District Court is reversed, and the cause is remanded for a new trial.