United States Court of Appeals

For the First Circuit

Nos. 00-1739, 00-1813

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT MICHAEL MARINO, A/K/A GIGI PORTALLA, AND

JOHN J. PATTI III,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Chief Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Robert L. Sheketoff with whom Sheketoff & Homan was on brief for

appellant Vincent Marino.

Terrance J. McCarthy for appellant John J. Patti III.

Cynthia A. Young, Assistant United States Attorney, with whom

James B. Farmer, United States Attorney, was on brief for appellee.
January 14, 2002
-3-

LYNCH, Circuit Judge. Vincent Marino, a/k/a Gigi Portalla,

and John Patti were members of La Cosa Nostra. They appeal their

convictions under the Racketeer Influenced and Corrupt Organizations

statute (RICO), 18 U.S.C. §§ 1961-1968 (1994 & Supp. V 1999) and the

Violent Crimes in Aid of Racketeering statute (VICAR), 18 U.S.C. § 1959

(1994). 

RICO has proven to be a powerful weapon in the government's

efforts against organized crime. And so it was here. The government's

theory described internecine warfare within the Patriarca Family of La

Cosa Nostra, a group engaged in criminal activity, including drug

distribution. The activities of the Patriarca Family have been

chronicled in this court for more than a decade, including in United

States v. Angiulo, 847 F.2d 956 (1st Cir. 1988). See also United

States v. Barone, 114 F.3d 1284 (1st Cir. 1997); United States v.

Angiulo, 57 F.3d 38 (1st Cir. 1995); United States v. Carrozza, 4 F.3d

70 (1st Cir. 1993); United States v. Patriarca, 948 F.2d 789 (1st Cir.

1991); United States v. Zannino, 895 F.2d 1 (1st Cir. 1990). 

 The relevant events span the years from 1989 through 1994.

The Patriarca Family fractured into rival factions, the Salemme faction

and the Carrozza faction, each seeking to seize control. Each took

steps to eliminate members of the other, by murder or, at least,

injury. Marino and Patti, the defendants here, were members of the

Carrozza faction. They have each been sentenced to imprisonment for
1 Both defendants were acquitted of Count Four (using and

carrying firearms in relation to the conspiracy to murder thirteen

individuals in violation of 18 U.S.C. § 924(c)) and Count Thirty-one

(using and carrying firearms in relation to the drug trafficking

conspiracy in violation of 18 U.S.C. § 924(c)). Patti was also

acquitted of Count Fifteen (using and carrying firearms in relation to

the attempted murder of Michael Prochilo in violation of 18 U.S.C. §

924(c)). 

-4-

more than 30 years. These appeals raise a multitude of issues,

including challenges to jurors, evidentiary rulings, jury instructions,

and sentencing issues.

I.

The first trial of Marino and Patti ended in acquittals on

several counts,1 and their mistrial on the remaining counts. Marino and

Patti argued those acquittals foreclosed further prosecution. This

court rejected those contentions. United States v. Marino, 200 F.3d 6

(1st Cir. 1999). 

The second trial concluded with Marino and Patti being

convicted of participating in a pattern of racketeering activity in

violation of RICO, 18 U.S.C. § 1962(c) (substantive RICO violation)

(Count One); conspiring to participate in a pattern of racketeering

activity in violation of 18 U.S.C. § 1962(d) (RICO conspiracy) (Count

Two); and conspiring to murder thirteen named individuals in aid of

racketeering in violation of 18 U.S.C. § 1959 (VICAR) (Count Three).

Patti was also convicted of conspiring to distribute narcotics in
2 Much of the evidence in this case consisted of testimony by

cooperating witnesses about statements by the defendants and their

coconspirators. Our discussion of the facts does not describe who said

what to whom, but proceeds on the assumption that the jury generally

credited both the witnesses and the declarants.

-5-

violation of 21 U.S.C. § 846. Marino was sentenced to a total of 420

months in prison, while Patti was sentenced to 360 months in prison. 

The substantive RICO and RICO conspiracy counts required the

defendants to be found guilty of at least two racketeering acts or

predicate acts. 18 U.S.C. § 1961(5). The jury found Marino and Patti

had committed the predicate acts of conspiracy (under state law) to

murder thirteen individuals, and of conspiracy (under federal law) to

sell illegal drugs in violation of 21 U.S.C. § 846. 

II.

Taking the evidence in favor of the verdict, the jury could

have found the following facts.2 

Marino and Patti were members of the Patriarca Family of La

Cosa Nostra, an organization that controlled much of the crime in the

greater Boston area. In 1989 a conflict developed when a faction led

by Robert Carrozza, Joseph Russo, and Vincent Ferrarra began to

challenge Raymond Patriarca's leadership of the organization. In 1989

William Grasso, one of the leaders of the Patriarca Family, was killed.

An attempt was also made to murder Frank Salemme, who was at that time

in the Patriarca Family leadership. Marino was involved in the murder

attempt and had reason to fear Salemme would return the favor. 
-6-

In 1991 Salemme became the boss of the Partriarca Family.

The conflict escalated. On one side was the leadership of the

Patriarca Family, and on the other side was the rival Carrozza faction,

to which Marino and Patti belonged. Both factions wanted to collect

the extortion payments to the Patriarca Family and control its other

business. 

Anthony Ciampi, a key Carrozza faction member, owned a club

on Bennington Street in East Boston, the site of gambling and illegal

card games. Carrozza faction members frequented the club. Mark

Spisak, a Carrozza faction member, worked there. Marino was seen at

least once at the club by John Arciero, a government witness. 

In the Fall of 1993 there was a confrontation at the Breeds

Hill Club in East Boston when Stephen Rossetti, a Salmme faction

member, with Joseph Souza, Richard Devlin, and Richard Gillis present,

shook down Ciampi. Months later, Ciampi would kill Devlin. Rossetti

would die a natural death.

In early 1994 Marino and Patti conspired with others to help

Carrozza challenge Salemme's leadership of the Family. As part of the

conspiracy, Ciampi, accompanied by Spisak and Nick Patrizzi, murdered

Devlin on March 31, 1994. Devlin had been attempting to extort money

from Ciampi's gaming operations. Devlin's killers also attempted to

murder Gillis. Both victims belonged to the Salemme faction. The

murder of Devlin and the attempt to murder Gillis took place after
-7-

Ciampi saw Devlin, Gillis, and Stephen Rossetti in the vicinity of his

club, "rubberneck[ing]" him earlier in the day. Ciampi believed that

the three men were looking to kill him.

After Devlin's murder the Carrozza faction met more

frequently at Ciampi's club, which became the center of operations.

The group also stored weapons and surveillance equipment (such as night

vision binoculars) there. Marino and Patti participated in a number of

these meetings. The group talked about collecting envelopes of "rent"

payments and taking over the city once they had killed Salemme and his

allies.

After the Devlin murder and before August 1994, members of

the Carrozza faction, including Michael Romano, Ciampi, Spisak, Ralph

Scarpa, Enrico Ponzo, Marino, and Patti, met at Santarpio's, a

restaurant in East Boston. Ciampi boasted of killing Devlin and asked

who was going to do what next. The group discussed the need to

eliminate their enemies and, specifically, their plans to kill Mark and

Stephen Rossetti, Gillis, and Darin Buffalino, all members of the

Salemme faction. After the meeting Romano told Spisak that Carrozza

had told Romano that he had "a lot of faith in [Marino]."

During this period, between March 31 and August, 1994, a

"peace" meeting took place between the warring factions at Kelly's Pub

in Central Square in East Boston. Robert Luisi Jr. and Stephen

Rossetti (Salemme faction members) met with Romano (from the Carrozza
-8-

faction) to discuss Devlin's murder and a proposed truce. Luisi and

Rossetti told Romano that the reason Devlin, Gillis, and Stephen

Rossetti had been in the vicinity of Ciampi's club on the day Devlin

was killed was to look for Marino, whom they suspected was involved in

the attempted murder of Salemme in 1989.

There was no peace. On September 1, 1994, Michael Romano Jr.

was murdered. Both Romano Jr. and his father, Romano Sr., were

Carrozza stalwarts. At a Northgate Mall meeting, the Carrozza group,

with Marino in attendance, discussed who was responsible for the

murder, and initially focused on Joseph Cirame and Enrico Ponzo. They

also suspected several members of the Salemme faction, including

Cirame, Joseph Souza, David Clark, Lonnie Hilson, and Frank Salemme.

The murder of Romano Jr. intensified the warfare.

The Carrozza faction developed a "hit list" of people to

kill. Their hit list included known Salemme faction members and those

believed responsible for killing Romano Jr. The defendants and others

participated in several excursions to locate and shoot people on the

hit list. The excursions started and ended at the Ciampi club. 

At a meeting at the club, Arciero, Romano, Sean Cote, Scarpa,

Paul DeCologero, Marino, and Patti discussed a plan to kill Salemme at

an auto body shop in Somerville. They wanted both to avenge Romano's

murder and to take over the Patriarca Family operation. At another

meeting, Romano, Arciero, Cote, DeCologero, Scarpa, Gino Rida, Marino,
-9-

and Patti planned to kill Lonnie Hilson in Everett because Hilson was

"with Salemme." 

In September 1994, Carrozza faction members twice attempted

to murder Joseph Cirame, whom Romano Sr. suspected in the murder of

Romano Jr. The first attempt failed; during the second, on September

16, Cirame was shot several times, but survived. 

On September 21, 1994, Cote, while in a car driven by Patti,

opened fire on Michael Prochilo, who was in his own car. Prochilo, who

was in the Salemme faction, had stolen drugs from Patti. He was not

hit. 

On September 25, 1994, Cote stabbed Timothy Larry O’Toole in

the arm because O'Toole was in the Salemme faction. 

On October 13, 1994, several members of the Carrozza faction

unsuccessfully attempted to murder Stephen Rossetti outside his home.

This was only one of numerous attempts to kill Rossetti. 

On October 20, 1994, Romano Sr. shot and killed Joseph Souza.

Romano acted both to avenge his son's death and as part of the larger

struggle between the factions. There was no evidence that Marino was

a direct participant in Souza's murder.

Sometime in late 1994, Marino, Patti, and Cote broke into a

doughnut shop in Central Square, East Boston. They stole both cash and

guns for use by the faction and stored the guns with the cache of

weapons already at Ciampi's club.
-10-

In addition, at least from the Fall of 1993 through the Fall

of 1994, the Patriarca Family, including Patti and Marino, was involved

in a cocaine distribution operation. Participants in this operation

supplied drugs to other members of the Patriarca Family for

distribution and sale, and for personal use.

III.

On appeal, Marino and Patti raise a myriad of issues. We

list them here in the order in which they are addressed.

(1) Peremptory Challenges to Venire: Patti claims that the trial court

committed reversible error when it allowed the prosecutor, in violation

of the Equal Protection and Due Process Clauses, to use his peremptory

challenges to strike what Patti says was every Italian-American

surnamed juror from the jury.

(2) Exclusion of Witnesses: Marino claims that the district court

violated his Sixth Amendment right to present a defense when it refused

to allow him to call certain witnesses to impeach the testimony of

prosecution witnesses. 

(3) Coconspirators' Statements: Marino and Patti challenge the

admission of coconspirator statements admitted pursuant to Federal Rule

of Evidence 801(d)(2)(E), because they claim the declarants were

members of a warring faction and so could not be their coconspirators

within the meaning of the Rule.
-11-

(4) RICO Enterprise: Marino attacks the sufficiency of the evidence to

establish the requisite nexus under 18 U.S.C. § 1962(c) between the

alleged enterprise -- the Patriarca Family -- and the predicate act --

the drug trafficking conspiracy. 

(5) Jury Instructions: Marino appeals several of the trial court's jury

instructions:

(a) Massachusetts Law, Aiding and Abetting a Conspiracy -- Marino

says that the court erred in instructing the jury about aiding and

abetting a conspiracy because Massachusetts law does not recognize the

crime of aiding and abetting a conspiracy.

(b) Multiple-Object Conspiracy -- Marino contends that the court

diluted the government's burden of proof by instructing the jury that

he could be found guilty of the conspiracy to murder thirteen

individuals if he agreed to murder at least one of them and had the

foresight or knowledge of the broader scope of the conspiracy.

(c) Unanimity Instruction -- Marino argues that the court should

have instructed the jury that it had to be unanimous about which of the

thirteen people Marino agreed to murder. 

(d) Instructions on Elements of Substantive RICO Violation --

Marino challenges the trial court's instructions as to three elements

of RICO: the "employed or associated with" element, the "conduct and

participate in the conduct of the affairs of the enterprise" element,

and the interstate commerce element.
-12-

(e) Rejected Instruction on Credibility of Rule 801(d)(2)(E)

Declarants -- Marino argues that the court erred when it refused to

instruct the jury on assessing the credibility of nontestifying

declarants whose testimony was admitted pursuant to an exception to the

hearsay rule.

(6) Sentencing Issues: Marino makes two challenges to his sentence.

(a) Consideration of Souza's Murder -- Marino argues that the

sentencing court should not have taken into account the murder of Souza

when sentencing him, because the jury did not specifically find beyond

a reasonable doubt that Marino participated in the murder of Souza, but

rather found that he conspired to murder thirteen named individuals,

including Souza.

(b) Apprendi Error -- Marino attacks his sentence because he

claims it violated the Supreme Court's holding in Apprendi v. New

Jersey, 530 U.S. 466 (2000). 

(7) Double Jeopardy: Marino argues that his sentence violated the

Double Jeopardy Clause because he was sentenced for both a substantive

RICO violation and a RICO conspiracy, and because the VICAR violation

is a lesser included offense of the substantive RICO violation.

Defendants have been very ably represented but their

arguments do not prevail. We outline some of the significant rulings

of law in this opinion.
-13-

1) We hold on the facts of this case that statements made by

defendants' fellow members of a larger conspiracy in furtherance of

that larger conspiracy are admissible as coconspirator statements under

Rule 801(d)(2)(E), even when the declarants are members of an opposing

faction fighting over control of the larger conspiracy.

2) We interpret the "through a pattern of racketeering activity"

requirement under RICO, and hold that a sufficient nexus for the

purposes of a substantive RICO violation under 18 U.S.C. § 1962(c)

exists between the racketeering acts and the enterprise when the

defendant was able to commit the predicate acts by means of, by

consequence of, by reason of, by the agency of, or by the

instrumentality of his membership in the enterprise. 

3) We hold that the jurisdictional requirement of both RICO and VICAR

require only that the crime have some effect on interstate commerce.

4) We hold that a substantive RICO violation under 18 U.S.C. § 1962(c)

and a RICO conspiracy under 18 U.S.C. § 1962(d) are not the same

offense for the purposes of double jeopardy analysis, and can therefore

be punished separately.

We address each issue in turn.

1. Peremptory Challenges to Venire

(Patti)
-14-

Patti contends that the prosecutor's use of four peremptory

challenges to eliminate Italian-American surnamed individuals from the

jury violated the constitutional guarantee of equal protection. Batson

v. Kentucky, 476 U.S. 79, 89 (1986). More specifically, he claims that

the district court's failure to hold a hearing to inquire into the

prosecutor's use of the peremptory challenges was erroneous. 

During voir dire, the government used its peremptory

challenges on Bradley Cordeiro, Alexander Innamorati, Jacquelyn

Mascetta, and William Rosati. The defendant objected to these

peremptory challenges stating that the government was trying to

eliminate all Italian-American surnamed individuals from the jury. The

trial court overruled the objection.

Since Batson it has been clear that criminal defendants may

assert a right to jury selection procedures that forbid the government

from eliminating "potential jurors solely on account of their race."

Id. at 89. Batson established a three-part framework to ascertain

whether the prosecution employed a race-based peremptory strike. Id.

at 96-98. In the first step, the defendant must make a prima facie

showing that the strike appeared discriminatory. If such a showing is

made, the burden shifts to the government, which must advance a neutral

explanation for the strike. Lastly, the district court must "determine

if the defendant has established purposeful discrimination" or if the

government's explanation is valid. Id. at 98.
3 Angiulo also held that "to make out a prima facie case of

purposeful discrimination under Batson, the defendants must be members

of the ethnic or racial group that they contend was discriminated

against by the government." 847 F.2d at 984; see also Bucci, 839 F.2d

at 833 n.12 ("We also note that neither appellant presented evidence

that 'he is a member of [the Italian-American] group.'" (quoting

Batson, 476 U.S. at 96) (alteration in original)). This rule is no

longer good law. See Powers v. Ohio, 499 U.S. 400, 415 (1991) ("[A]

defendant in a criminal case can raise the third-party equal protection

claims of jurors excluded by the prosecution because of their race.");

see also Chakouian v. Moran, 975 F.2d 931, 932-34 (1st Cir. 1992)

(discussing the effect of Powers).

-15-

To make a prima facie showing, the defendant must show that

the strike was used on a juror who is a member of a "cognizable . . .

group," Angiulo, 847 F.2d at 984, that "[has] been or [is] currently

subjected to discriminatory treatment." United States v. Bucci, 839

F.2d 825, 833 (1st Cir. 1988).3 The question is not whether members of

the relevant group see themselves as part of a separate group, but

rather "whether others, by treating those people unequally, put them in

a distinct group." Id. (emphasis omitted). Whether such a group

exists is a question of fact. Id. In both Angiulo and Bucci, this

court rejected Batson claims on the basis that there was no evidence

that Italian-Americans were such a group. Angiulo, 847 F.2d at 984;

Bucci, 839 F.2d at 833. So too here. 

Patti's claim fails for two reasons. First, he did not show

that Italian-Americans or Italian-American surnamed people are a group

that faced or faces systematic discrimination. Second, he did not show

that the challenged jurors were in fact Italian-Americans or even that
-16-

all their surnames were Italian-American. United States v. Sgro, 816

F.2d 30, 33 (1st Cir. 1987) ("[Defendant] offered no evidence showing

what surnames are 'Italian-American' or demonstrating the relationship

between surnames and ethnicity."). Because Patti failed to make a

prima facie showing, the district court acted appropriately in not

holding a hearing on the matter. See Bucci, 839 F.2d at 832.

2. Exclusion of Witnesses

(Marino)

Marino argues that the trial court's refusal to allow him to

call particular witnesses to impeach the testimony of prosecution

witnesses violated his Sixth Amendment right to present a defense. The

court did not allow him to call Trooper Michael Grassia, John Mele's

relatives, Anthony Penta, or Everett Frazier to impeach the testimony

of John Mele and Mark Spisak.

Mele was the government's primary witness as to Marino's

involvement in the 1989 attempted murder of Frank Salemme -- one of the

alleged RICO predicate acts. The defense claims that "Mele attempted

to paint himself as a nonviolent mid-level drug dealer who never really

made any money; and, who was recruited at the last second to

participate in the Salemme shooting in 1989, agreeing only because he

was hitching his wagon to the defendant." The defense sought to

impeach Mele by showing that he was a violent, high-level, very wealthy
-17-

drug dealer. Marino sought to introduce the testimony of Trooper

Grassia that when he questioned Mele in 1987 about weapons and

bulletproof vests seized from Mele's apartment, Mele said he kept the

weapons to use when he stole cocaine or money from other drug dealers.

Marino also sought to introduce the testimony of Mele's relatives about

Mele's accumulation of weapons and wealth. In addition, Marino sought

the testimony of Anthony Penta that Mele attacked and almost killed him

over jewelry which Mele believed Penta had stolen from him. The trial

court excluded the testimony of these witnesses as mere impeachment of

Mele's testimony, not in compliance with Fed. R. Evid. 608(b).

The other excluded testimony went to the impeachment of Mark

Spisak, who testified for the government that he was in the car with

Anthony Ciampi when Ciampi fired fatal shots at Devlin. Marino sought

to introduce the testimony of Everett Frazier, Spisak's nephew, to

testify that Spisak had told him that he shot Devlin himself. The

trial judge excluded the Frazier testimony as a collateral matter used

only for impeachment. 

We review questions of admissibility of evidence for abuse

of discretion. United States v. Gilbert, 181 F.3d 152, 160 (1st Cir.

1999). We find none here. The evidence falls into the category of

impeachment of a witness on a collateral matter through extrinsic

evidence. Generally, a party may not present such evidence. United

States v. Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993). A matter is
-18-

collateral if "the matter itself is not relevant in the litigation to

establish a fact of consequence, i.e., not relevant for a purpose other

than mere contradiction of the in-court testimony of the witness." Id.

at 4 (quoting 1 McCormick on Evidence 169 (4th ed. 1992)) (internal

quotation marks omitted). Whether something is collateral is within

the discretion of the trial judge. United States v. Mulinelli-Navas,

111 F.3d 983, 988 (1st Cir. 1997).

Nevertheless, extrinsic evidence to disprove a fact testified

to by a witness may be admissible if the trial judge deems that it

satisfies the Rule 403 balancing test and it is not excluded by another

rule. One such rule of exclusion is Rule 608(b): "Specific instances

of the conduct of a witness, for the purpose of attacking or supporting

the witness' credibility, other than conviction of crime . . . may not

be proved by extrinsic evidence." Some of the proffered testimony went

to the conduct of the witnesses and so was properly excluded under Rule

608(b). As to the rest, the trial judge did not abuse his discretion

in concluding that it was collateral.

Grassia's proposed testimony would have been about Mele's

position as a drug dealer, which was not relevant to Marino's guilt or

innocence. The same was true of the evidence from Mele's relatives.

Similarly, Frazier's testimony as to who murdered Devlin could be

viewed as collateral. Marino was not accused of murdering Devlin.
-19-

Exactly who killed Devlin (that is, Ciampi or Spisak) was not at issue

so long as the person was part of the charged conspiracy.

Finally, Mele was extensively cross-examined on the fact that

he was a drug dealer, that he was arrested and his apartment searched,

that he kept weapons in this apartment, that he owned property, and

that he fought with Penta over the stolen jewelry. Spisak was also

cross-examined about his role in the murder of Devlin. There was no

violation of a constitutional right to cross-examine.

3. Coconspirators' Statements (Rule 801(d)(2)(E))

(Marino and Patti)

Marino and Patti both argue that the district court erred

when it admitted hearsay evidence based on the coconspirators'

statements exception to the hearsay rule. Fed. R. Evid. 801(d)(2)(E).

Specifically, they object to the admission of authorized surveillance

tape recordings of a December 11, 1991 conversation between Frank

Salemme, Natale Richichi, and Kenneth Guarino which took place at a

Hilton hotel (the "Hilton tapes"). The conversation was a general

discussion about the Patriarca Family and its business: the members of

the Family, the structure, and the activities of the organization. The

government used the tapes to show that the Patriarca Family existed and

that it engaged in illegal activities. The defense theory is that the

three men whose conversation was recorded were part of the rival
-20-

Salemme faction and so could hardly be the defendants' coconspirators,

and therefore the evidence is inadmissible.

In addition, Marino contends that statements made by Bobby

Luisi Sr. and Stephen Rossetti (introduced through the testimony of

Mark Spisak and Jerry Matricia) were inadmissible on the same grounds.

It is unclear to which statements Marino is referring; it appears that

he means statements made by Luisi and Rossetti that the reason Devlin,

Rossetti, and Gillis were in the area of Ciampi's club the night Ciampi

shot Devlin was to kill Marino in retaliation for his attempted murder

of Salemme in 1989, and not to kill Ciampi (as Ciampi believed). These

Luisi and Rossetti statements were made during a meeting between

representatives of the two factions who were trying to ease the tension

in the factional dispute. 

Under Rule 801(d)(2)(E), "a statement by a coconspirator of

a party during the course and in furtherance of the conspiracy" is not

hearsay. Patti and Marino argue that because the statements were made

by members of a faction which was at war with their faction, there was

no unity of interest between them, so the statements could not have

been made by coconspirators. 

This argument raises issues of law and of fact. We review

the trial court's determination that statements were coconspirator

statements under the clear error standard. United States v. MojicaBaez, 229 F.3d 292, 304 (1st Cir. 2000), cert. denied, 121 S. Ct. 2215
-21-

(2001). To admit a statement under the coconspirator exception, the

government must show by a preponderance of the evidence that the

defendant and declarant were in the same conspiracy, and that the

statement was made "during the course and in furtherance of the

conspiracy." Bourjaily v. United States, 483 U.S. 171, 175 (1987)

(quoting Fed. R. Evid. 801(d)(2)(E)); United States v. Ciampaglia, 628

F.2d 632, 638 (1st Cir. 1980). The rule is that 

[a]s long as it is shown that a party, having joined a

conspiracy, is aware of the conspiracy's features and

general aims, statements pertaining to the details of plans

to further the conspiracy can be admitted against the party

even if the party does not have specific knowledge of the

acts spoken of. 

Angiulo, 847 F.2d at 969. In addition, the improper admission of such

testimony is subject to harmless error analysis. 

While defendants' arguments make some sense, they run afoul

of well established law about admission of coconspirators' statements.

To the extent that defendants seek to establish a legal principle that

members of warring factions within an umbrella conspiracy necessarily

lack the unity of interest to be conspirators in the umbrella

conspiracy, we reject that principle. Defendants may simultaneously be

members of two conspiracies. We have already ruled that another

conspiracy, larger than the one charged at trial, may provide the basis

for the admission of the coconspirator's statements. See United States

v. Innamorati, 996 F.2d 456, 486 (1st Cir. 1993) ("Whether this was a

separate conspiracy or part of the larger . . . conspiracy makes no
-22-

difference so far as the admissibility of the statement . . . is

concerned."); see also United States v. Gigante, 166 F.3d 75, 82 (2d

Cir. 1999); United States v. Orena, 32 F.3d 704, 713 (2d Cir. 1994). 

Here there was ample evidence of just such another conspiracy

-- the Patriarca Family, writ large, and its drug dealing, extortion,

and other criminal activities. Other case law from this court, as

noted before, recognized the existence of that criminal conspiracy.

See, e.g., Angiulo, 847 F.2d 956. The Hilton tapes discussions were in

furtherance of that conspiracy. The defendants rely on Gigante, which

states that "organized crime membership alone" does not suffice to

establish a conspiracy. 166 F.3d at 83. That is true, but that is not

the situation here. In Gigante the supposed coconspirators were

members of different mafia families which had different goals, while in

this case, the declarants and the defendants were part of the same

Family which shared common goals. 

In this context, the more important question is whether the

statements made were "in furtherance of" the conspiracy of which both

defendants and declarants were members and whether the statements were

relevant. Under this aspect of the test, the Luisi and Rossetti

statements are a closer matter. Their statements concerned the

factional dispute. If these were simply statements by rival faction

members about the factional dispute, defendants would have a stronger

argument that the statements were not made in furtherance of a
-23-

conspiracy to which they belonged. But context is important. The

statements were made by members of the Salemme faction to Romano, a

member of the Carrozza faction, during a peace meeting between the two

factions to see if the conflict could be settled. The internecine

warfare was upsetting the business and sapping away the energies of the

Patriarca Family enterprise. The murders were bad for business and the

Family had an interest in stopping them. In this context, the

statements were made in furtherance of and in the course of a common

conspiracy.

Marino also makes a fleeting argument that he was an outsider

to the Patriarca Family, and only connected to it tangentially through

Carrozza. If Marino was not part of the Patriarca Family conspiracy,

the coconspirator statements would not be admissible against him.

Under United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977),

the district court was required to find by a preponderance of the

evidence that the defendants and the declarants were coconspirators and

that the statements were made in furtherance of the conspiracy. The

district court did make such a finding. We review for clear error,

Mojica-Baez, 229 F.3d at 304, and we find none. Both Marino and Patti

were at the Santarpio's restaurant meeting where members of the

Carrozza faction planned murders of the Salemme faction. It was not

clear error to reject Marino's argument that he was an outsider. 
-24-

4. RICO Enterprise

(Marino)

Marino argues that the evidence was not sufficient to show

that one of the predicate acts for which he was convicted amounted to

"conduct[ing] or participat[ing] . . . in the conduct of [the]

enterprise's affairs through a pattern of racketeering activity" as

required under 18 U.S.C. § 1962(c), which defines a substantive RICO

violation. The predicate act in question was a 1994 drug trafficking

conspiracy with Romano Sr., Patti, Scarpa, and Ciampi, all of whom were

Carrozza faction members. RICO requires two predicate acts and

Marino's effort here is to knock out one of the two.

Marino, using the common shorthand phrase, says there was not

a sufficient "nexus" between the drug trafficking conspiracy and the

enterprise, the Patriarca Family. He argues that there was no evidence

that this drug conspiracy was part of the Patriarca Family operation,

that the profits were shared with the Family, that the drug conspiracy

somehow furthered the Family, that Carrozza as head of the faction had

anything to do with the drug conspiracy, or that by virtue of whatever

position Marino had in the Family he was enabled to commit the drug

conspiracy. In sum, he says there was no evidence that the drug

conspiracy was anything other than a freelance operation unrelated to

the Patriarca Family.
4 Proving that some things remain constant in human nature, the

first historic example in the Oxford English Dictionary of this use of

the word "through" comes from the Lindisfarne Gospels, Luke 17:1, circa

950. The modern translation of this passage from Luke is entitled The

Treatment of Offences, and reads "[t]hen he said unto the disciples, It

is impossible but that offences will come: but woe unto him, through

whom they come." Luke 17:1 (King James).

-25-

Marino's argument raises the issue of what standards are used

to evaluate whether a sufficient nexus has been shown for the purposes

of 18 U.S.C. § 1962(c). The statutory language at issue is: 

It shall be unlawful for any person employed by or

associated with any enterprise engaged in, or the activities

of 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 or collection of unlawful debt.

18 U.S.C. § 1962(c) (emphasis added). The focus of Marino's argument

is on the "through a pattern of racketeering activity" phrase. 

It is clear that by using the word "through," Congress

intended some connection between the defendant's predicate acts and the

enterprise. The question before us is whether Marino participated in

the operations of the Patriarca Family through the drug trafficking

conspiracy. Black's Law Dictionary defines the word "through" as "[b]y

means of, in consequence of, by reason of." Black's Law Dictionary

1481 (6th ed. 1990). The Oxford English Dictionary defines "through"

as meaning, among other things, "[i]ndicating medium, means, agency or

instrument: By means of, by the action of . . . . By the

instrumentality of."4 XVIII Oxford English Dictionary 11 (2d ed. 1989).
-26-

Each of these phrases offers a way of proving the participation or

conduct was "through a pattern of racketeering activity." A sufficient

nexus or relationship exists between the racketeering acts and the

enterprise if the defendant was able to commit the predicate acts by

means of, by consequence of, by reason of, by the agency of, or by the

instrumentality of his association with the enterprise. 

The requirement "through a pattern of racketeering activity"

has been met in several situations. When the defendant uses his

position in the enterprise to commit the racketeering acts, the

"through" requirement is fulfilled. See, e.g., United States v. Grubb,

11 F.3d 426, 439-40 (4th Cir. 1993) ("the affairs of the enterprise

were conducted through a pattern of racketeering activities" because

"the record show[ed] beyond doubt that the power and prestige of

[defendant's] office placed him in a position to perform the discrete,

corrupt and fraudulent acts of which he was convicted and which make up

the RICO predicate offenses"); United States v. Ruiz, 905 F.2d 499, 504

(1st Cir. 1990) (holding that sufficient relationship between the

predicate acts and the enterprise existed where defendant's ability to

commit the crimes was "inextricably intertwined with his authority and

activities as an employee of [the police department]"). In addition,

when the resources, property, or facilities of the enterprise are used

by the defendant to commit the predicate acts, the "through"

requirement is fulfilled. See, e.g., Grubb, 11 F.3d at 439
-27-

("[C]onsidering the fact that [defendant] physically used his judicial

office . . . i.e. the telephones and the physical office itself . . .

a sufficient nexus is established."); Ruiz, 905 F.2d at 504 (use of

enterprise resources such as data and inside information contributed to

establishing a sufficient nexus); United States v. Carter, 721 F.2d

1514, 1527 (11th Cir. 1984) (use of a dairy farm's land, employees, and

office in drug smuggling created a nexus between the smuggling and the

farm); United States v. Webster, 669 F.2d 185 (4th Cir. 1982) (help

from club employees and use of club telephone and property established

sufficient nexus between enterprise and racketeering activity).

It is not necessary to make other showings in order to

fulfill the "through" requirement. It is unnecessary for the pattern

of racketeering to have benefitted the enterprise in any way. Grubb,

11 F.3d at 439. The pattern of racketeering activity does not have to

"affect the everyday operations of the enterprise," United States v.

Starrett, 55 F.3d 1525, 1542 (11th Cir. 1995), and the defendant need

not have channeled the proceeds of the racketeering activity into the

enterprise. United States v. Kovic, 684 F.2d 512, 517 (7th Cir. 1982).

The evidence here was sufficient to meet the "through"

requirement connecting the predicate act to the enterprise. Jurors,

mindful of the adage that you are known by the company you keep, could

easily infer that the drug conspiracy had a sufficient nexus to the

Patriarca Family. All of Marino's fellow drug conspirators were
-28-

Carrozza faction members, and Ciampi owned the club where the members

tended to hang out and store their drugs. The conspirators supplied

drugs to each other for distribution to customers and gave free cocaine

to members of the Family to reward them for shootings. Further,

coconspirator Romano handled things for both Carrozza and Joseph Russo,

a capo and former consigliere of the Family. Romano used the names of

Carrozza and Russo to collect money for cocaine distribution. This is

but the clearest example of the conspirators' positions in the

Patriarca Family facilitating their commission of the drug trafficking

conspiracy.

We reject Marino's argument.

5. Jury Instructions

(Marino)

Marino makes five separate claims that the trial court erred

in its instructions to the jury. Normally, a claim of jury instruction

error is reviewed de novo. United States v. Woodward, 149 F.3d 46, 68-

69 (1st Cir. 1998). When no proposed instructions are given, and no

objection is made, the standard of review for the jury instructions is

plain error. United States v. Crochiere, 129 F.3d 233, 237 (1st Cir.

1997). Marino objected to all but one of the jury instructions which

he now challenges. He did not make an objection to the trial court's

instruction on the predicate act of conspiracy to murder thirteen named
-29-

individuals based on his concerns for juror unanimity, so we review

that claim for plain error.

a. Massachusetts Law, Aiding and Abetting a Conspiracy Instruction

A brief description of the relationship between state and

federal criminal law under RICO and VICAR is necessary to understand

this issue. Under RICO, a "racketeering act" may be a predicate act

which is chargeable under either certain enumerated federal statutes or

under state law, as follows: 

"racketeering activity" means (A) any act or threat

involving murder, kidnapping, gambling, arson, robbery,

bribery, extortion, dealing in obscene matter, or dealing in

a controlled substance or listed chemical . . . which is

chargeable under State law and punishable by imprisonment

for more than one year; (B) any act which is indictable

under any of the following provisions of title 18, United

States Code . . . .

18 U.S.C. § 1961(1). As to VICAR, it provides for the punishment of

anyone who: 

as consideration for the receipt of, or as consideration for

a promise or agreement to pay, anything of pecuniary value

from an enterprise engaged in racketeering activity, or for

purpose of gaining entrance to or maintaining or increasing

position in an enterprise engaged in racketeering activity,

murders, kidnaps, maims, assaults with a dangerous weapon,

commits assault resulting in serious bodily injury upon, or

threatens to commit a crime of violence against any

individual in violation of the laws of any State or the

United States, or attempts or conspires so to do . . . . 

18 U.S.C. § 1959(a).

Here one of the predicate acts (racketeering act B) involved

a violation of federal law -- a conspiracy to sell illegal drugs in
-30-

violation of 21 U.S.C. § 846. This argument concerns the other

predicate act (racketeering act A-1), a conspiracy to murder thirteen

individuals in violation of state law. 

Marino argues that the court erroneously charged the jury

that he could be found guilty of the predicate crime of conspiracy to

murder if he was found to be aiding and abetting the conspiracy.

Marino claims that because the predicate act of conspiracy to murder is

a state law crime, and because Massachusetts state law has never

recognized as a theory of liability the aiding and abetting of a

conspiracy, the trial court erred.

Two instructions on aiding and abetting a conspiracy were

given, and Marino objected to both instructions. First, the court

instructed the jury on Count One -- the substantive RICO violation

under 18 U.S.C. § 1962(c); second, the court instructed the jury on

Counts Three and Fourteen -- the VICAR violations. 

As to the first, the court did not expressly link aiding and

abetting to conspiracy, but rather stated that the defendant could be

found guilty of the substantive RICO violation, if the jury found that

he "committed, or aided and abetted the commission of, at least two

acts of racketeering." As a statement of federal law, this is plainly

correct. Aiding and abetting liability is inherent in every federal

substantive crime. United States v. Sanchez, 917 F.2d 607, 611 (1st

Cir. 1990).
-31-

In the second instance the court instructed the jury that 

[t]o establish a violation of the charge committing or

aiding and abetting a violent crime in aid of racketeering,

as charged in Counts 3 and 14 of the indictment, the

government must prove the following beyond a reasonable

doubt: . . . third, that the defendant committed, or aided

and abetted the alleged crime of violence, that is, the

conspiracy to murder, assault with a dangerous weapon, or

attempted murder, in violation of state law. 

Here the court clearly instructed the jury on aiding and abetting a

conspiracy to murder, which conspiracy was a state law crime. 

Some courts have held that it is not necessary for a district

court to instruct the jury on each element of the state law crime which

is used as a predicate act in a RICO prosecution. United States v.

Watchmaker, 761 F.2d 1459, 1469 (11th Cir. 1985); United States v.

Bagaric, 706 F.2d 42, 62-63 (2d Cir. 1983). These courts have stated

that "[u]nder RICO . . . state offenses are included by generic

designation." Bagaric, 706 F.2d at 62. But for a crime to be

chargeable under state law, it must at least exist under state law.

See United States v. Carrillo, 229 F.3d 177, 184-86 (2d Cir.), cert.

denied sub nom. Ocasio v. United States, 531 U.S. 1026 (2000); Bagaric,

706 F.2d at 63 (if "the racketeering act is not prohibited at all under

state law" it may not serve as a predicate act for RICO purposes). If,

as Marino argues, aiding and abetting a conspiracy is not a crime that

can be charged under Massachusetts state law, it follows that a jury

instruction to this effect is erroneous.
5 The federal statute for aiding and abetting has very similar

language to the Massachusetts statute. It reads: " Whoever commits an

offense against the United states or aids, abets, counsels,

commands, induces or procures its commission, is punishable as

a principal." 18 U.S.C. § 2(a).

-32-

Marino argues that because Massachusetts courts have

"recognized the fundamental distinctions between accomplice and

conspiratorial liability," they would not recognize the crime of aiding

and abetting a conspiracy. It is true that Massachusetts law

acknowledges the difference between accomplice liability and

conspiratorial liability, i.e., that by aiding and abetting a crime one

does not automatically become a coconspirator because one is not

necessarily part of the conspiratorial agreement (the key to the crime

of conspiracy). Commonwealth v. Cook, 10 Mass. App. Ct. 668, 411

N.E.2d 1326, 1330-32 (1980). 

The Massachusetts aiding and abetting statute reads: "Whoever

aids in the commission of a felony, or is accessory thereto before the

fact by counselling, hiring or otherwise procuring such felony to be

committed, shall be punished in the manner provided for the punishment

of the principal felon." Mass. Gen. Laws ch. 274, § 2. Just like the

federal statute for aiding and abetting, the Massachusetts statute does

not create a separate offense, but rather makes those who aided and

abetted in the commission of a crime punishable as principals.5

Commonwealth v. Perry, 357 Mass. 149, 256 N.E.2d 745, 747 (1970);

Sanchez, 917 F.2d at 611. Because the Massachusetts aiding and
-33-

abetting statute is a statute of general application, it applies to the

crime of conspiracy, just as it applies to any other offense, such as

robbery, unless there is a specific reason why it should not apply to

conspiracy. 

No such reason is found in the federal analogue. Federal law

allows for the crime of aiding and abetting a conspiracy. United

States v. Oreto, 37 F.3d 739, 751 (1st Cir. 1994). Federal courts and

commentators have stated the concern that without a rule which allows

for conviction for aiding and abetting a conspiracy, people who

knowingly help an illegal conspiracy would go unpunished. United

States v. Galiffa, 734 F.2d 306, 310-11 (7th Cir. 1984); 2 W. LaFave &

A. Scott, Substantive Criminal Law § 6.4, at 75-76 (1986).

The only Massachusetts source that arguably suggests that

Massachusetts law would not be open to a conviction of aiding and

abetting a conspiracy is Cook, 411 N.E.2d at 1330-32. In Cook, the

state appeals court held that a defendant cannot be found guilty of a

conspiracy if he was simply found to have aided and abetted in the

commission of the substantive crime. Id. This question is different

from the question of whether one may aid and abet the conspiracy

itself. Furthermore, in Cook there was only sufficient evidence to

show that the defendant helped another after the completion of the

crime, or at the scene of the crime. Id. at 1329. There was no
-34-

evidence that he knew about the conspiracy or the plan to commit the

crime. Id. 

Under Massachusetts law, to prove a defendant guilty of

aiding and abetting a crime, the state must prove that "someone

committed the prohibited act, and that the defendant intentionally

assisted the principal in the commission of the crime while sharing the

mental state required for that crime." Commonwealth v. Filos, 420

Mass. 348, 649 N.E.2d 1085, 1089 (1995). Just as under federal law, a

defendant can only be convicted of aiding and abetting a conspiracy if

he knew about the conspiracy. There is no Massachusetts case that

prevents a defendant from being convicted of aiding and abetting a

conspiracy to murder when the defendant knew about the conspiracy or

the agreement to conspire. 

On its face the Massachusetts aiding and abetting statute

applies to all crimes, and there is nothing in Massachusetts law that

counsels against the application of the statute to the crime of

conspiracy to murder, where there is evidence that the defendant knew

of the conspiracy. We cannot say that the jury instruction on aiding

and abetting a state law conspiracy in this case was erroneous.

b. Multiple-Object Conspiracy Instruction

Marino claims that the trial court's charge to the jury

concerning racketeering act A-1, which charged him with conspiring with

others to murder thirteen named individuals in violation of state law,
-35-

was too broad, lowered the government's burden of proof, and was

erroneous. The trial court instructed the jury that in order for it to

find Marino guilty of the predicate act of conspiracy to murder "the

government must show that the defendant . . . conspired or agreed to

murder at least one of the 13 named individuals and that at the time he

agreed to the murder, . . . defendant also had foresight or knowledge

of the much broader scope of the conspiracy." Marino objected to this

instruction.

Marino argues that because the predicate act of conspiracy

to murder is a state law crime, Massachusetts state law definitions

should be used, and Massachusetts law on conspiracy is far narrower

than the federal law. According to Marino, under Massachusetts law the

government must prove a greater degree of knowledge of the plan than

under federal law.

Some courts have held that state offenses are included in

RICO only for "generic designation." Bagaric, 706 F.2d at 62; see also

United States v. Salinas, 564 F.2d 688, 690-93 (5th Cir. 1977); United

States v. Frumento, 563 F.2d 1083, 1087 (3d Cir. 1977). But see United

States v. Carrillo, 229 F.3d 177, 185-86 (2d Cir. 2000) (expressing

view that RICO may require the government to prove the essential

elements of the state law crime used as a predicate act). We need not

decide the question of how the state law crimes used as RICO predicate

acts are to be defined, generally or by element.
-36-

Under both federal and Massachusetts law, a defendant need

not be aware of all the details of the criminal plan in order to be

convicted of the conspiracy. Blumenthal v. United States, 332 U.S.

539, 557 (1947); United States v. Hinds, 856 F.2d 438, 443 (1st Cir.

1988); Commonwealth v. Nelson, 370 Mass. 192, 346 N.E.2d 839, 841-42

(1976); Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E.2d 504, 519

(1964) (citing Blumenthal). 

Here, there was evidence that Marino was at the Santarpio's

restaurant meeting of the Carrozza faction members where the need to

eliminate their enemies was discussed. At this meeting, four members

of the Salemme faction were specifically named and targeted for murder.

These four members were part of the group of thirteen targets named in

the indictment. In addition, after the meeting Carrozza, the head of

the faction, told another faction member, Romano, that he had "a lot of

faith in [Marino]." This statement associates Marino with the cause of

the Carrozza faction. Marino was often present at Ciampi's club, which

was the center of operations for the Carrozza faction. He participated

in meetings planning the murders of Salemme and Hilson, both targets

named in the indictment. Marino also went on several hunting trips to

murder members of the Salemme faction. He added to the accumulation of

weapons for the Carrozza faction: he broke into the doughnut shop,

stole some guns, and brought them back to Ciampi's club. There was

sufficient evidence to show that Marino was part of the conspiracy to
-37-

murder members of the Salemme faction, and the inference could readily

be drawn that he foresaw the murder or attempted murder of all thirteen

named individuals. 

Thus, even assuming some differences in the application of

conspiracy law in Massachusetts and the federal courts, the differences

are not material in this case, and the district court did not err. 

c. Unanimity Instruction

The trial court instructed that "the government must show

that the defendant . . . conspired or agreed to murder at least one of

the 13 named individuals and that at the time he agreed to the murder

. . . defendant also had foresight or knowledge of the much broader

scope of the conspiracy." Marino argues the court had to instruct the

jury that it must be unanimous in its verdict as to which one, or more,

of the thirteen named individuals the defendant conspired to kill.

Because the defendant did not object to the jury charge on these

grounds, this instruction is reviewed for plain error. United States

v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001). 

It is possible that the failure to give a specific

instruction that the jury must agree unanimously as to whom Marino

conspired to murder was error on the facts of this case. Compare

United States v. Helmsley, 941 F.2d 71, 91 (2d Cir. 1991) (approving a

"careful" charge directing jurors that they "must all agree on the

specific object the defendant agreed to try to accomplish"), with
-38-

United States v. Dillman, 15 F.3d 384, 392 (5th Cir. 1994) ("[J]urors

need not agree on which particular offenses [a] defendant intended

personally to commit as long as there is but one conspiracy that

encompasses the particular offenses charged."). We decline to reach

the question. If there was error, it was not plain, given the

unsettled state of the law.

d. Instruction on Elements of Substantive RICO Violation

Marino argues that the trial court erred in instructing the

jury on three of the five RICO elements. He objected to the charge.

For a defendant to be found guilty of a substantive RICO violation

under 18 U.S.C. § 1962(c), the government must prove beyond a

reasonable doubt that (1) an enterprise existed; (2) the enterprise

participated in or its activities affected interstate commerce; (3) the

defendant was employed by or was associated with the enterprise; (4)

the defendant conducted or participated in the conduct of the

enterprise; (5) through a pattern of racketeering activity. See United

States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997). Marino argues

instructional error on what constituted "association with" the

enterprise, and how great his involvement needed to be to be considered

to have "conducted" or "participated" in the conduct of the enterprise.

He also argues that the district court "diluted" the government's

burden of proof when it instructed the jury on the requirement that the

enterprise affect or participate in interstate commerce.
-39-

i. Association with and Participation in RICO Enterprise

The arguments about association with the enterprise and

participation in the conduct of the enterprise go hand in hand. Marino

argues that the instructions lowered the government's burden of proof

on the degree of his involvement with the enterprise. He says that the

instructions allowed the jury to find that it was enough to decide that

he "was an outsider, a friend of Carrozza's, who aided and abetted

Carrozza[] at Carrozza's direction" and from this "conclude that he was

associated with the Patriarca Family and operated that enterprise." 

The court instructed the jury that under RICO a person is

associated with an enterprise 

if he knowingly participates, directly or indirectly, in the

conduct of the affairs of an enterprise. One need not have

an official position in the enterprise to be associated with

it. One need not formally align himself with an enterprise

to associate with it. Association may be by means of an

informal or loose relationship. To associate has its plain

meaning. . . . "Associated" means to be joined, often in a

loose relationship, as a partner, fellow worker, colleague,

friend, companion, or ally. Thus, although a person's role

in the enterprise may be very minor, a person will still be

associated with the enterprise if he knowingly joins with a

group of individuals associated in fact who constitute the

enterprise.

The instruction accurately described the meaning of "associated with"

in § 1962(c). 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." United States

v. Elliot, 571 F.2d 880, 903 (5th Cir. 1978). The RICO statute seeks
6 Although this court has never articulated this broad standard

for association with the enterprise in a criminal RICO case, it has

done so in a civil RICO case. Aetna Cas. Sur. Co. v. P&B Autobody, 43

F.3d 1546, 1558-59 (1st Cir. 1994) (defining "associated with" to

include one who buys an insurance policy from an insurer). We have

also stated that "it is appropriate to rely on civil RICO precedent

when analyzing criminal RICO liability. The standard is the same for

both criminal and civil RICO violations." Shifman, 124 F.3d at 35 n.1.

-40-

to encompass those people who are "merely 'associated with'" the

enterprise. Id.; see also United States v. Watchmaker, 761 F.2d 1459,

1476 (11th Cir. 1985). The defendant need only be "aware of at least

the general existence of the enterprise named in the indictment,"

United States v. Console, 13 F.3d 641, 653 (3d Cir. 1993) (quoting

United States v. Eufrasio, 935 F.2d 553, 577 n.29 (3d Cir. 1991)), and

know about its related activities. United States v. Martino, 648 F.2d

367, 394 (5th Cir. 1981); see also United States v. Starrett, 55 F.3d

1525, 1551-52 (11th Cir. 1995).6

Marino's other objection goes to the "conduct" or

"participate in" prong. The court instructed the jury that 

[t]he terms "conduct" and "participated in the conduct of"

the affairs of an enterprise include the performance [of]

acts, functions or duties which are related to the operation

of the enterprise. . . . [T]he [government] must prove that

the defendant had some part in the operation or management

of the enterprise. The government need not prove that the

defendant . . . exercised significant control over or within

the enterprise. 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.

Marino argues that this charge does not comport with the Supreme

Court's holding in Reves v. Ernst & Young, 507 U.S. 170 (1993). In
-41-

Reves, the Court held that "an outside accounting firm employed by an

enterprise was not subject to civil RICO liability unless it

'participate[d] in the operation or management of the enterprise

itself.'" United States v. Oreto, 37 F.3d 739, 750 (1st Cir. 1994)

(quoting Reves, 507 U.S. at 183) (alteration in original). Marino

argues that the instruction to the jury "lowered the government's

burden of proof [on the degree of Marino's participation in the

enterprise] to mere aiding and abetting from the very bottom of the

ladder." 

Oreto holds that the government could prove that defendants

"conduct[ed] or participate[d] . . . in the conduct of" the enterprise

by a showing that the defendants "participated in the enterprise's

decisionmaking" or that, if they were lower rung participants and not

involved in the decision making, they were plainly integral to carrying

out the process. Id. at 750. Here the government had evidence of both

and the instruction was proper. 

ii. Effect on Interstate Commerce

Marino argues that the district court's instructions

misstated the degree to which the enterprise's activities must relate

to interstate commerce. The trial court instructed that "[t]he

evidence need not show any particular degree of or effect on interstate

commerce. All that is required is some effect on interstate commerce."

Marino argues that under the Supreme Court's rulings in United States
-42-

v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S.

598 (2000), the government had to show that the enterprise's activity

had a substantial effect on interstate commerce. That is not so. 

In Lopez, the Gun-Free School Zones Act, 18 U.S.C. § 922(q)

(Supp. II 1990) (amended 1994), was struck down because it did not have

a "jurisdictional element which would ensure, through case-by-case

inquiry, that the [activity] in question affect[ed] interstate

commerce." Lopez, 514 U.S. at 561. In Morrison the Supreme Court

invalidated the civil remedy provided by the Violence Against Women

Act, 42 U.S.C. § 13981, for similar reasons: "[l]ike the Gun-Free

School Zones Act at issue in Lopez, § 13981 contains no jurisdictional

element establishing that the federal cause of action is in pursuance

of Congress' power to regulate interstate commerce." Morrison, 529

U.S. at 613.

In contrast, RICO contains a jurisdictional element: "It

shall be unlawful for any person employed by or associated with any

enterprise engaged in, or the activities of which affect, interstate or

foreign commerce, to conduct or participate . . . in the conduct of

such enterprise's affairs . . . ." 18 U.S.C. § 1962(c) (emphasis

added). A number of circuit courts have held, post-Lopez, that the

government does not need to show that the RICO enterprise's effect on

interstate commerce is substantial. United States v. Riddle, 249 F.3d

529, 537 (6th Cir.) (holding that "RICO enterprise's necessary
-43-

relationship to interstate commerce" is still "de minimis"), cert.

denied, 122 S. Ct. 292 (2001); United States v. Juvenile Male, 118 F.3d

1344, 1347 (9th Cir. 1997) ("[A]ll that is required to establish

federal jurisdiction in a RICO prosecution is a showing that the

individual predicate racketeering acts have a de minimis impact on

interstate commerce."); United States v. Miller, 116 F.3d 641, 674 (2d

Cir. 1997) (holding that in a RICO case "the government need only prove

that the individual subject transaction has a de minimis effect on

interstate commerce"). We agree. See United States v. Doherty, 867

F.2d 47, 68 (1st Cir. 1989) ("RICO requires no more than a slight

effect upon interstate commerce.").

Marino makes the same claim as to VICAR. VICAR applies only

to those defendants whose violent acts are "as consideration for"

payment from, or in hopes of "gaining entrance to or maintaining or

increasing position in an enterprise engaged in racketeering activity."

18 U.S.C. § 1959(a). Such an enterprise must be "engaged in," or its

"activities . . . affect, interstate or foreign commerce." Id. §

1959(b)(2). VICAR also has a jurisdictional element. United States v.

Torres, 129 F.3d 710, 717 (2d Cir. 1997). As a result "§ 1959's

requirements are met if the government establishes a connection between

the § 1959 act of violence and a RICO enterprise which has a de minimis

interstate commerce connection." Riddle, 249 F.3d at 538.
-44-

The district court's instructions that RICO and VICAR require

only "some effect on interstate commerce" were not erroneous.

e. Rejected Instruction on Credibility of Rule 801(d)(2)(E) Declarants

Marino argues that the district court's refusal to include

instructions on evaluating the credibility of out-of-court

coconspirator declarants was erroneous. The failure by a district

court to give requested jury instructions is only reversible error if

the requested instruction "(1) is substantively correct; (2) was not

substantially covered in the charge given to the jury; and (3) concerns

an important point in the trial so that the failure to give it

seriously impaired the defendant's ability to effectively present a

given defense." United States v. Williams, 809 F.2d 75, 86 (1st Cir.

1986). 

The district court instructed the jury as to its duty as "the

sole judges of the credibility of the witnesses," about various factors

it could consider in assessing credibility, and specifically cautioned

the jury about testimony "of an alleged accomplice or of one who

provides evidence against a defendant for immunity from punishment or

for personal advantage or vindication." The court's credibility

instructions as a whole were correct, and the instruction requested by

Marino (after the jury was already charged) was substantially covered

in the charge because the judge pointed out to the jury the potential
7 In addition, it is difficult to see any prejudice. Marino

did not even attempt to attack the credibility of the non-testifying

declarants using Rule 806, which states: 

When a hearsay statement, or a statement defined in Rule

801(d)(2)(C), (D), or (E), has been admitted in evidence, the

credibility of the declarant may be attacked . . . by any evidence

which would be admissible for those purposes if declarant had

testified as a witness.

Fed. R. Evid. 806. The issue was instead the credibility of the

cooperating witnesses who testified to the declarants' statements; this

the district court addressed fully. 

-45-

unreliability of witnesses who were former accomplices. See United

States v. Hernandez-Escarsega, 886 F.2d 1560, 1573-75 (9th Cir. 1989).7

6. Sentencing Issues

(Marino)

a. Consideration of Souza's Murder

Due to the Carrozza faction's actions two men died: Devlin

and Souza. The government claimed Marino was part of the conspiracy to

kill Souza and that his sentence should increase because the conspiracy

to murder Souza resulted in exactly that murder.

The trial judge agreed and held that the jury found Marino

joined a conspiracy to murder thirteen people, and the jury finding

disposed of the issue. Marino's argument is that the jury finding did

not establish that Marino conspired to murder Souza. The jury

instruction was: "[T]he government must show that the defendant . . .

conspired or agreed to murder at least one of the 13 named individuals
8 In this case, the district court used the Guidelines Manual

current at the time of sentencing, i.e., the Guidelines Manual issued

in November 1999. We use the numbering from the 1999 Guidelines Manual

in this opinion. In the most current Guidelines Manual, however,

former application note 5 to § 1B1.2(d) is now application note 4. The

language of the note has remained the same.

-46-

and that at the time he agreed to the murder, that defendant also had

foresight or knowledge of the much broader scope of the conspiracy."

The jury verdict establishes only that Marino agreed to murder at least

one of thirteen individuals and he had foresight or knowledge of the

broader scope of the conspiracy.

The trial judge, relying on the Presentence Report, found

that the appropriate base offense level was 43 on Count One and Count

Three. The sentencing guidelines for both the substantive RICO

violation and VICAR contain cross-references to ascertain the base

offense level by looking at "the underlying racketeering activity."

U.S.S.G. § 2E1.1 (RICO); see id. § 2E1.3 (VICAR) (referring to "the

underlying crime or racketeering activity"). The predicate act of

conspiracy to murder under U.S.S.G. § 2A1.5 has a base offense level of

43 when the conspiracy resulted in death.

Marino argues that the court should not have considered

Souza's murder because application note 5 8 to U.S.S.G. § 1B1.2 requires

that before the court may do so either the jury or the judge must find

that Marino conspired to kill Souza beyond a reasonable doubt. 
9 According to the logic and reasoning of Carrozza, application

note 5 does not apply to a VICAR violation either, because the

guideline for VICAR contains substantially identical structure and

language to the RICO guideline examined in Carrozza. Compare U.S.S.G.

§ 2E1.1 with U.S.S.G. § 2E1.3.

-47-

Guideline Section 1B1.2(d) specifically addresses a

conviction on a multiple-object conspiracy: "A conviction on a count

charging a conspiracy to commit more than one offense shall be treated

as if the defendant had been convicted on a separate count of

conspiracy for each offense that the defendant conspired to commit."

U.S.S.G. § 1B1.2(d). Application note 5 to § 1B1.2 cautions:

Particular care must be taken in applying subsection (d)

because there are cases in which the jury's verdict does not

establish which offense(s) was the object of the conspiracy.

In such cases, subsection (d) should only be applied with

respect to any object offense alleged in the conspiracy

count if the court, were it sitting as trier of fact, would

convict the defendant of conspiring to commit that object

offense. 

This note has been interpreted to mean that the sentencing court should

only consider an object offense in a multiple object conspiracy if

either the jury finds at conviction, or the court finds at sentencing,

that beyond a reasonable doubt the defendant conspired to commit that

particular offense. United States v. McKinley, 995 F.2d 1020, 1026

(11th Cir. 1993).

However, this court has previously ruled that this cautionary

note does not apply to determining the sentence for a substantive RICO

violation.9 United States v. Carrozza, 4 F.3d 70, 78-79 (1st Cir.
-48-

1993). The question of whether application note 5 would apply in a

case with facts similar to this case, but involving a conspiracy to

murder conviction that was not embedded in a RICO or VICAR charge is

still open, but it is not one we reach here. Carrozza holds that in a

RICO case, in determining the base offense level, the sentencing court

should not limit its relevant conduct inquiry to the predicate acts

charged against the defendant, but instead should consider "all conduct

reasonably foreseeable to the particular defendant in furtherance of

the RICO enterprise to which he belongs." Id. at 74. 

Under relevant conduct analysis "in the case of a jointly

undertaken criminal activity (a criminal plan, scheme, endeavor, or

enterprise undertaken by the defendant in concert with others, whether

or not charged as a conspiracy), all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal

activity" should be considered in determining the base offense level.

 U.S.S.G. § 1B1.3(a)(1)(B). In Carrozza, this court interpreted this

guideline to mean that in sentencing a defendant in a jointly

undertaken criminal activity case, such as a RICO violation, 

the district court must determine (1) the scope of the joint

criminal activity explicitly or implicitly agreed to by [the

defendant] jointly with others; (2) whether the criminal

acts proffered as relevant conduct were in furtherance of

the jointly undertaken criminal activity; and (3) whether

the proffered acts were reasonably foreseeable in connection

with that criminal activity.
-49-

Id. at 76. When conducting a relevant conduct analysis, the district

court need only find that the relevant conduct occurred by a

preponderance of the evidence. United States v. Caba, 241 F.3d 98, 101

(1st Cir. 2001). 

The trial judge was not explicit, save for his statement that

the jury found Marino guilty of conspiracy to murder. We think,

nonetheless, that the sentencing court made an implicit finding that

the murder of Souza was reasonably foreseeable to Marino. This was the

prosecutor's argument in response to Marino's objection, and the court

overruled the objection, accepting the prosecutor's argument. Souza

was part of the faction which Marino's faction was trying to eliminate

and Marino was present at various meetings selecting individuals to

target. Marino was also responsible for stealing and accumulating

ammunition for use by his faction. Souza was one of the people

suspected in the murder of Romano Jr., also targeted by the Carrozza

faction. In addition, when Souza's body was found, he had with him an

address book with the license plate number of Marino's girlfriend

written in it. Marino's girlfriend had obtained this license plate

number only a few weeks before Souza's death. This was evidence of

some connection between Souza and Marino, which may have given Marino

some particular reason to want Souza dead, making it more likely he

knew of the faction's plans. 
-50-

We review a sentencing court's findings regarding the role

played by the defendant and the activities of the conspiracy reasonably

foreseeable to him for clear error. United States v. Hernández, 218

F.3d 58, 71 (1st Cir. 2000). The sentencing court's consideration of

the Souza murder in sentencing Marino was not clearly erroneous.

b. Apprendi Error

Marino makes two arguments that the district court violated

the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466

(2000), in sentencing him. Both are disposed of under circuit

precedent by the fact that he was sentenced within the statutory

maximum.

First, Marino says that several acts for which he was not

indicted, and which were not submitted to the jury, were used by the

district court to increase the maximum guideline sentence. For

example, the sentencing court took into account Marino's attempted

murder of Salemme in 1989, but the jury did not convict him of this

offense. In addition, the jury convicted him of drug conspiracy, but

the conviction did not specify a quantity of cocaine. The sentencing

court found that Marino was responsible for at least 500 grams of

cocaine, and sentenced him accordingly. As Marino himself candidly

concedes, however, this court rejected his "expansive reading of

Apprendi" in United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001).

Marino makes the same argument that the defendant made in Caba. Caba
10 The government has said that Patti could have a valid

different Apprendi argument. Patti was sentenced to 360 months'

imprisonment on each of Counts One, Two, and Thirty, to run

concurrently with one another. The district court sentenced Patti

beyond the statutory maximum of 240 months' imprisonment for Counts One

and Two. This matters not to the term of incarceration because the 360

months sentence for Count Thirty is appropriate, and the three

sentences run concurrently. Because this argument was not raised by

Patti we do nothing with it.

In addition, the government conceded at oral argument that

Marino and Patti may have had a valid Apprendi claim with regard to

their supervised release terms. However, this issue was not raised by

either defendant in the district court or on appeal. We therefore do

not deal with it here. Counsel for both sides are free, of course, to

agree on an appropriate adjustment and, if timely, raise the issue with

the district court.

-51-

held that his argument fails because Apprendi does not apply in cases

in which a guidelines finding does not increase the sentence beyond the

statutory maximum, id., as Marino's sentence here.

Second, Marino argues that Apprendi was violated because the

court and not the jury decided that his RICO and VICAR violations

subjected him to the maximum penalty of life imprisonment. However,

"Apprendi only applies when the disputed 'fact' enlarges the applicable

statutory maximum and the defendant's sentence exceeds the original

maximum," id. (emphasis added), unlike here. The sentencing court did

not err.10

7. Double Jeopardy

(Marino)
-52-

Marino argues that the general prohibition against multiple

punishments for the same acts bars the multiple punishments in his

case. Specifically, he claims that he cannot be punished separately

(as he was) for the substantive RICO violation and for RICO conspiracy.

In addition, he argues that the VICAR violation (Count Three) is a

lesser included offense of the substantive RICO violation because the

same offense is used as one of the RICO predicate acts. 

The Double Jeopardy Clause prohibits successive prosecutions

or punishments for the same offense. United States v. Ursery, 518 U.S.

267, 273 (1996). The test to determine whether two offenses are

considered the same offense for double jeopardy is set forth in

Blockburger v. United States, 284 U.S. 299 (1932): two offenses are

separate offenses if each contains an element not contained in the

other. Because a RICO conspiracy contains a different element than a

substantive RICO violation, namely an agreement with others to commit

a substantive RICO violation, a substantive RICO violation and a RICO

conspiracy are not the same offense for double jeopardy purposes. 

The Supreme Court has long recognized that "in most cases

separate sentences can be imposed for the conspiracy to do an act and

for the subsequent accomplishment of that end." Iannelli v. United

States, 420 U.S. 770, 777-78 (1975). The only exception is Wharton's

Rule, which applies only "when the substantive offense is of a sort

that necessarily requires the active, or culpable, participation of the
-53-

same . . . people for its successful completion," such as in the case

of adultery. United States v. Previte, 648 F.2d 73, 76 (1st Cir.

1981). A RICO conspiracy and a RICO violation do not necessarily

require the participation of the same people. Instead, the agreement

to violate RICO by conspiring to commit racketeering acts could be made

by a different group of people than the ones who actually end up

committing the substantive violation. 

We join the circuits that have held that a substantive RICO

violation and a RICO conspiracy are not the same offense for double

jeopardy purposes, and accordingly, can be punished separately. See,

e.g., United States v. Sessa, 125 F.3d 68, 71 (2d Cir. 1997); United

States v. Rone, 598 F.2d 564, 569-71 (9th Cir. 1979). 

Marino's argument that the VICAR violation (conspiracy to

murder thirteen individuals) is a lesser included offense of the

substantive RICO violation is similarly flawed. Many courts, including

this one, have considered the issue of whether the double jeopardy

clause prohibits separate punishments for a substantive RICO violation

as well as its predicate acts. These courts have reached the

conclusion that it does not. United States v. Greenleaf, 692 F.2d 182,

189 (1st Cir. 1982); see also United States v. Coonan, 938 F.2d 1553,

1566 (2d Cir. 1991); United States v. Beale, 921 F.2d 1412, 1437 (11th

Cir. 1991); United States v. Kragness, 830 F.2d 842, 864 (8th Cir.

1987); United States v. Hawkins, 658 F.2d 279, 287 (5th Cir. 1981).
-54-

Here, the VICAR violation is a predicate act as well as its own

separate violation. The district court did not err in punishing Marino

separately for both offenses. 

Conclusion

The judgment of the district court is affirmed.