with the court's permission i would like to reserve three minutes for rebuttal my name is robert because i represent frank rocco as a court is aware from the briefs briefs frank rocco is appealing the judgment entered against him and the jury's verdict on count three of the civil complaint that we defended in the eastern district that count our certitude the derivative civil rico conspiracy claim the jury's verdict was three hundred thirty four thousand dollars as i stand here today it has ballooned to well over three million dollars probably closer to four with the inclusion of attorney's f the remedial portion of the verdict consumes twelve to fifteen percent of my numbers are correct the issue that we raise i suggest is one that this court and at least twenty district courts have addressed and answer namely whether a civil rico conspiracy claim that is derivative of a substantive rico cla survives the complete rejection of the substance of substantive recall liability on anyone's part that is the posture of this case well there are two different things first the question of whether the jury really found that there was no enterprise that's the first claim pick you make and that depends on whether the jury could have read the first question in the into raga torrie to require all the participants to be now i know that later on invest some requirements  fat there was something that suggested that that was not what that meant but since the first clause said if you find this you don't read any fervor is it not possible that we should read the jury finding as vet not all were involved and they did acquit one and so that is a you know that's a perfectly possible consistency we don't need to hold it inconsistent to assume that the jury the word among the verdict form that first question asked if a civil rico enterprise existed among the defendant if but i don't i don't i think you're overlooking the way the court charged things to the jury when the court was transitioning the substantive can it defined enterprise the same way it had the when the court got to the charge on enterprise under the conspiracy count it first said one alternative was that and then at page five forty six the court when all and who gave a alternative definition of enterprise an enterprise also includes a group of people who have associated together for a common purpose of cetera and it did not limit that second alternative version of enterprise to one that consisted of all five so the jury following the different different definitions of enterprise given by the court in its church could well say no enterprise on the substantive count because enterprise was defined by the court on the substance of count as consisting in full five but enterprise on the conspiracy camp because enterprise there we were given an alternative and the culpable members of that oh no that's not true because in the charge on the substantive count the court had limited the definition to all five well i imput but i mean that would of course assume that the jury did not understand the word among and then did not know that mitt meant maybe i'm not communicating well when the court defined enterprise for purposes of the substantive can you talk only of an agreement of an enterprise consisting of all five minute listed phone when it got charging the enterprise and on and on the conspiracy camp it first gave that same definition and then it said there's an alternative and the alternative did not limited to five so  so the jury could in total fidelity to that instruction have rejected enterprise on the substantive count and still found in a prize on the conspiracy it doesn't change that the jury found no substantive liability on anyone's part and there's no way because there was because there was no enterprise of five people racketeering act that caused the damages which as they were instructed to do and they did under those instructions on the conspiracy claim there was no indication that any defendant any rico person committed iraqi tearing act ok now wait let's come to that and the question of whether it is necessary for and in defended to have met the rico  level you it seems to me that you forfeited the question of whether v individual defended had to do the two record  for rico as against doing only one which is not enough to be rico but is enough to do damages if there is an enterprise or a conspiracy to do that now that question is a fascinating question just look at the question of whether and enterprise a conspiracy to create an enterprise which has not been completed constitutes an enterprise those are wonderful questions but i don't think they're before us because you forfeited that i'm not going to say waiver even one of a client said one party said yes but even short of waiver but forfeiture the law is not which doesn't really say anything so how can we say that the law is clear and when you didn't make the argument i think that we have made the argument that for a rico conspiracy to exist someone has to commit a situation where a lawyer may strategically decide i'm not going to get to that if i win this great and if i don't i've got a claim of a different sort of that's just where we are toughest on o playing there i appreciate that when you look at the actual verdict form essentially the argument is the theory is that we can take that one page out and treat that as a self contained claim there's still nothing in the form that indicates that anyone actually committed an act the last line says that the plaintiff suffered an injury caused by an enterprise's racketeering activity which is clearly wrong because the enterprise doesn't commit racket less than wonderful the but the jury was charge that in order find damages they had to find a predicate to cause injury so the charge was if they followed the instructions as we presume they did they would have found all the things you're talking about but what i'm hung up on is they did not the only opportunity that the jury had to return a verdict against anyone on a claim of substantive liability from which the conspiracy claim would derive allegations made in the complaint this was the enterprise to plant i have questions for your adversary and that we get to that but but at least and least as a theoretical matter the jury could but there was a four person and a four entity enterprise and then there was a predicate acts committed further it's the racketeering activity so that there was liability on  confused conspiracy and enterprise and it's not difficult those are not difficult concepts to conflate i think of the jury was told that a conspiracy exists as a means of imposing vicarious liability that an individual conspirator need not commit to predicate acts the courts have formulated a different test for what makes someone a rico conspirator but somebody has to commit a substantive of each other as in the defendants can be found guilty of playing three irrespective of the outcome a claim to a different answer to that question and one that was given to the jury might have resulted in a jury verdict form it was clearer  for the position you're arguing might a bit but of course we had no way of knowing what prompted that question or what was behind that and the assumption usually is that the jury wants more specific information they can ask for that could be a question one juror had or an entire jury panel had but not the other count and that would not be an incorrect statement of  the principle problem of course is the rico statute is confusing and there should be no why berthe for the jury to essentially come up with some kind of a compromise decision you have your argument like you that the enterprise as defined in the complaint is an enterprise of all five defendants isn't it correct that in describing the enterprise a smaller enterprise it instead repeatedly mentioned that the plaintiff had charge that was an enterprise of five isn't it correct that you  the record we don't need to assume we can look at the verdict sheet and the verdict sheet so this is page five ninety three in the record its claim three question two does not ask the jury did all defendants knowingly and willfully become a member of this enterprise but rather gives them the opportunity to choose which defendants became a member of the enterprise and to the waiver or forfeiture point your honor was raising previously there was a waiver i everything every step of the way three motions for summary judgment multiple motions in limine a motion to dismiss all after criminal trial and of course his appeal but the reason i bring that up is to say that there were multiple opportunities to address this issue judge coons had a multi hour charge conference where the counsel went through the charge page by page there was never a request to change it could be a few members of the enterprise around or getting right to your point we reviewed the verdict sheet prior not just to it being submitted to the jury but prior to closing there was of course the question your honor just raise and even after the verdict sheet we're dealing respectfully here we with a highly regarded trial counsel who knew that they had the opportunity to   but i believe that when reading through if there's one page i think the council asked you to look at seventy five words i'd ask you to look at one page which is five ninety three and to review the actual questions because first question one is for claim three asks whether there was an agreement amongst whom or persons a right away b c the distinction from claim to giving the jury the opportunity to choose not all members all defendants but more persons and then it says to participate in an enterprise that would affect interstate commerce to a pattern of racketeering activity it includes all the elements of a rico enterprise there and you noted there was a charge in all of this which we have to assume that they read and then question to doesn't ask did they try to become part of this enterprise the way you sometimes see in these conspiracy charges but it says did a defendant knowingly and willfully become a member of the enterprise so the enterprise came into effect so i agree with your honor that there are some interesting questions here and of course as anyone in my position who's tried the case and is appealing it wishes you could have done something differently i do think any concerns with this were waived but that we also have the verdict sheet which shows us what the jury did and  says decision in the post verdict motions or it's a page seven where he really kind of distills this where he says the jury merely found no civil rico enterprise amongst all the caption defendants this is in our briefs two in particular the jury did not believe d putting this in the context in which it occurred the first question of the substantive rico verdict she asks regarding the existence of an enterprise and goes on to say if the answer is no do not move on no i don't think that in a vacuum because plaintiffs counsel objected to that language and ask that the jury be instructed move on to the next claim trial judge over objection it's not reasonable for me to include a conclude that is a dispositive question if the jury finds no enterprice the case should be over that essentially was was our position and that was to clear import of the judge's ruling denying plaintiff's counsel's requests for different language now how the jury got to cling to there is a certain amount of speculation and guesswork involved in that and it is a reasonable theory wh the pens we just don't know i think it is as likely that they split the baby in some way deciding not to hold people responsible for substantive rico violations possibly thinking conspiracies  adversaries argument about page five ninety three though and it seems fairly clear and your claim three was there an agreement among two or more persons to participate in an enterprise yes and then a four person enterprise  is is determined to exist for purposes of the conspiracy and weinstein it my position is that this verdict sheet really only makes sense when you read it from start to finish because the second claim about conspiracy is clearly based tear out the conspiracy claim it makes no sense at all because there is no reference to substantive conduct substantive violations of the rico statute which we should assume the jury understood they were finding when they rejected substantive liability thank you thank you both for your arguments will take it under submission