Indelicato was charged in two counts of a 25-count superseding indictment charging him and seven codefendants with various crimes arising out of operations of an organization known as the "Commission" of La Cosa Nostra, which was alleged to be the ruling body of the La Cosa Nostra organized crime families throughout the United States. The Commission was alleged to be a RICO enterprise, and Indelicato was charged with one count of participating in, and one count of conspiring to participate in, the affairs of the Commission through a pattern of racketeering activity, in violation of 18 U.S.C. §§ 1962(c) and (d), respectively.
To the extent pertinent to the question considered in this en banc rehearing, the evidence at trial, taken in the light most favorable to the government, revealed the following. The Commission had existed for decades as the governing body of the five La Cosa Nostra families in New York City and affiliated families in other cities. Each organized crime family included a "boss" or leader, assisted by an underboss and a counselor; beneath this level were "capos" or captains, who supervised a number of people who had been made "members" or "soldiers" of the family. To be made a member of such a family, one was required 1372*1372 to vow obedience to the rules and orders of the Commission and to be personally approved by it for admission. The functions of the Commission included overseeing interfamily ventures and intrafamily leadership disputes. The prior approval of the Commission was required before any family boss could be killed.
The Commission consisted principally of the bosses of the five organized crimefamilies in the New York City area. During most of the 1970's, however, it did not include a representative of one such family, the Bonanno organized crime family ("Bonanno family"), because of leadership disputes within that family. During this period, the Commission itself directly controlled the operations of the Bonanno family.
In 1979, the boss of the Bonanno family was Carmine Galante. Indelicato was a member of the family; his father was a capo; and an uncle, J.B. Indelicato, was a member. As part of an overall plan to end the factional disputes within the Bonanno family and to realign its leadership, the Commission planned and implemented the murder of Galante and two of his close associates.
In planning the murder of Galante, the Commission worked through Aniello Dellacroce, underboss of the Gambino organized crime family, Stefano Canone, the counselor of the Bonanno family, and several soldiers in the Bonanno family including Indelicato, Dominic Trinchera, and Cesare Bonventre. Thus, in May or June 1979, Trinchera introduced Indelicato to one Louis Giongetti, a lifelong felon. Indelicato asked Giongetti whether he had ever "hit," i.e., killed, anyone. Giongetti assured Indelicato that he was experienced and trustworthy. In early July, Indelicato and Trinchera met in a bar with Giongetti; Trinchera sent Giongetti to a "safe house" to retrieve a cache of shotguns and other weapons.
On July 12, 1979, Indelicato and two other men, all wearing ski masks, entered a restaurant in Brooklyn, New York, where Galante, his cousin Giuseppe Turano, and Galante's friend and associate Leonard Coppola were having lunch. Using guns of the type earlier amassed at the bar, Indelicato and his two companions shot and killed Galante, Turano, and Coppola. The victims were shot numerous times at close range with several weapons. The evidence also showed that two other men, including Bonventre, who had accompanied Coppola to lunch and were uninjured in the shootings, had joined in shooting Coppola, Turano, and Galante.
Indelicato and his two companions fled in a car stolen a month earlier. After abandoning that car, Indelicato immediately went with his father, his uncle J.B., and Phillip Giaccone, another Bonanno family capo, to a social club in Manhattan to report his success to Dellacroce and Canone. A surveillance videotape showed Indelicato being congratulated by Canone.
Thereafter, Indelicato remained involved with the Commission. He, Trinchera, and Bonventre were promoted to the rank of capo. Indelicato maintained that rank until at least 1981.
The three murders were the only RICO predicate acts alleged against Indelicato. He was not named in any of the remaining 23 counts of the indictment. The proof at trial relating to the three murders included, in addition to the above, ballistics and medical forensic evidence, eyewitness evidence, and Indelicato's palm print on an inside door handle of the getaway car. Indelicato was convicted on both of the counts against him. His appeal and the appeals of his codefendants were heard before a panel of this Court in September 1987.
Соединенные Штаты АмерикиDefendant Anthony Indelicato has appealed from a judgment entered in the United States District Court for the Southern District of New York, after a jury trial before Richard Owen, Judge, convicting him of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986). He was sentenced to two consecutive 20-year terms of incarceration and a $50,000 fine. His appeal and the appeals of his codefendants were heard by a panel of this same Court and remain pending before that panel. The court granted this rehearing en banc in order to consider the limited question of whether Indelicato's participation in three murders as part of a single criminal transaction could constitute a "pattern of racketeering activity" within the meaning of RICO, 18 U.S.C. § 1961(5).
The court’s assessment of Indelicato's contention that his commission of three murders as part of a single criminal episode or transaction cannot be considered a RICO "pattern" requires a review of the development of Second Circuit doctrine as to the RICO concept of pattern both before and after the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ("Sedima").
Prior to the Supreme Court's 1985 decision in Sedima and our interpretation of Sedima in United States v. Ianniello, 808 F.2d 184 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 3229, 97 L.Ed.2d 736 (1987), this circuit had liberally construed the RICO pattern element as not requiring, in connection with § 1962(c), that the predicate acts be "specifically" related to each other, so long as they were related to the conduct of the affairs of the enterprise, and as not requiring, in connection with § 1962(b), that the predicate acts be separated in time or place or be parts of separable episodes or in furtherance of different schemes.
This circuit, alone among all the circuits, has held that a RICO pattern of racketeering activity may be established simply by proof of two acts of racketeering activity, but that a RICO enterprise is not established unless there is proof that it is ongoing and that there is more than a single scheme having no demonstrable ending point.
The court concluded that proof of two acts of racketeering activity without more does not suffice to establish a RICO pattern; that the concepts of relatedness and continuity are attributes of activity, not of a RICO enterprise, and that a RICO pattern may not be established without some showing that the racketeering acts are interrelated and that there is continuity or a threat of continuity; that a pattern may be established without proof of multiple schemes, multiple episodes, or multiple transactions; and that racketeering acts that are not widely separated in time or space may nonetheless, given other evidence of the threat of continuity, constitute a RICO pattern.
Under these standards, the court has little difficulty in concluding that Indelicato's participation in the three Bonanno family murders as a representative of the Commission constituted a pattern of racketeering activity within the meaning of RICO. There were three persons targeted for assassination. Though the murders were virtually simultaneous, they plainly constituted more than one act. Further, the three murders were indisputably related since the purpose for each was facilitation of the desired change in leadership of the Bonanno crime family. Though the murders themselves were quickly completed, both the nature of the Commission, which was the alleged RICO enterprise, and the criminal nature of the Bonanno family, control of which the murders were designed to achieve, made it clear beyond peradventure that there was a threat of continuing racketeering activity. The evidence was plainly ample to permit the jury to infer that the murders were part of a RICO pattern.
Indelicato's principal argument on appeal is that proof of his commission of, or agreement to commit, three murders as part of a single criminal transaction is insufficient to establish a "pattern of racketeering activity" within the meaning of RICO.
Participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986)
Two consecutive 20-year terms of incarceration
United States Court of Appeals, Second Circuit.
865 F.2d 1370 (1989)
Link to judgement - https://scholar.google.com/scholar_case?case=14092263823083768531&q=organized+crime&hl=en&as_sdt=2006
Discussion on establishing a "pattern of racketeering activity" within the meaning of RICO.