Judge Rejects Miami Prosecutors’ Use of RICO to 'Regulate’ Criminal Defense Practice


	Print or Email This Page November 1999 RICO Report By *Barry Tarlow* Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney’s Office and is a member of The Champion Advisory Board. The author wishes to thank Shereen Charlick, a member of his firm, for her invaluable assistance in the preparation of this column. Judge Rejects Miami Prosecutors’ Use of RICO to 'Regulate’ Criminal Defense Practice The United States district court proceedings have finally concluded in a case which has been the cause of great interest and concern to the criminal defense bar. This phase of the four-year battle waged by prosecutors against two criminal defense lawyers, William Moran and Michael Abbell, ended when Miami district court Judge William M. Hoeveler discarded the prosecution’s theory that a lawyer’s actions, taken while defending clients associated with a criminal enterprise, illegally furthered the interests of the Cali Cartel. United States v. Abbell & Moran, et al., Case No. 93-140 Cr-WMH (S.D. Fla. 1998). In what can only be characterized as a unique, misguided, and troubling theory of prosecution, the United States Attorney’s Office for the Southern District of Florida charged Michael Abbell, formerly a Department of Justice attorney himself, and William Moran, a prominent Miami criminal defense lawyer, with conspiring to violate 18 U.S.C. � 1962(c), the Racketeer Influenced and Corrupt Organization laws (“RICO”) and with participating in the actual RICO conspiracy in violation of 18 U.S.C. � 1962(d), by using their positions as lawyers for individuals connected with the Cali Cartel to somehow participate in the drug trafficking business. The two lawyers were also charged with laundering drug proceeds and finally, with conspiring to import and to distribute cocaine. The prosecution brought these charges although they never intended to present even a scintilla of evidence that either of the two men ever took part in or discussed with others, importing or distributing cocaine, or laundering the proceeds of drug monies specifically – aside of course, from after-the-fact legal advice given to alleged Cartel members who were arrested on drug charges. It is noteworthy that prior to this indictment (which was then superseded four times before the first trial began), nationally renowned criminal defense lawyers, Albert Krieger and Martin Weinberg on behalf of Bill Moran, petitioned the highest ranking prosecutors involved in the Department of Justice’s (“DOJ”) review process, arguing that RICO and drug charges were entirely unfounded and inappropriate. They urged DOJ officials that, if any charges were to be filed, the alleged conduct could only possibly point towards obstruction of justice charges which carried only a fraction of the penalties the government would be seeking pursuant to the racketeering, drug smuggling and money laundering laws. Of course, obstruction of justice was far less exciting and newsworthy, and more importantly, prosecutors could not parade the history of Colombian drug importation in front of a jury deciding an obstruction case. Unfortunately, after a multi-day conference with Justice Department lawyers and several months of DOJ’s internal review, the officials were not persuaded, and in 1995, Moran and Abbell were charged in the 251-page indictment along with 57 named defendants, including Miguel Rodriguez Orejuela, widely known as the leader of the Cali Cartel and his “lieutenants.” Of course, the majority of the defendants named as “coconspirators” were out of the federal government’s reach. However, their inclusion, along with the racketeering charges, permitted the prosecution to introduce literally reams of evidence dating back to the virtual inception of the Cali Cartel and the millions of pounds of cocaine that the Cartel had poured onto the streets of this country and the billions of dollars received as payment. All of which, naturally, was not designed to endear any of the defendants, especially not the criminal defense lawyers who represented Cartel leaders and members, to the jurors who would decide their fate. As part of the investigation, search warrants were issued and computers and attorney work-product and attorney-client materials, even involving unrelated clients, were seized from the law offices of both Moran and Abbell. Notwithstanding the meritorious challenges to the search and seizure, numerous documents related to the legal representation of the Cali Cartel associates were introduced at trial. While these materials were clearly privileged, the government’s strained theory – that Moran and Abbell were “protecting” Cartel leaders by acting as attorneys for Cartel-related defendants, thus furthering the Cartel’s ultimate goals of illicit drug importation, allowed them to rely upon the “crime/fraud” exception to obtain these materials and introduce them at both ensuing trials. See The Champion, RICO Report (March 1996, Nov. 1996) (discussing search and seizure and other pretrial rulings and their implications for defendant’s constitutional rights). See United States v. Abbell & Moran, 914 F. Supp. 519 (S.D.Fla 1995) (discussing appointment Special Master re review privileged materials). Six defendants of the named 57, including Moran and Abbell, endured the first five-month trial beginning on May 12, 1997. The two lawyers were extraordinarily well-represented. Moran’s attorneys were Albert Krieger of Miami, Florida and Marty Weinberg of Oteri, Weinberg & Lawson in Boston, and Abbell was represented by Howard Srebnick and Krista Halla of the Law Offices of Roy Black as well as Scott Srebnick, who is “of counsel” to Albert Krieger. At the onset, Judge Hoeveler recognized, to some extent, the problems presented by this type of trial and permitted the parties two weeks for individual voir dire, following the completion of jury questionnaires. The entire trial was a testament to the unique perils resulting from a RICO prosecution which lumps together both lawyer and unpopular client. The jury heard testimony about all of the client’s wrongdoing, which in this case involved drug trafficking as well as violence and the corruption of government, and the prosecution argued that the lawyer was also responsible for these evils. The dangerously broad scope of the RICO statute and the breadth of the indictment in this case led to rulings admitting a plethora of evidence relating to Miguel Rodriguez-Orejuela, and the Cali Cartel’s crimes, even though the two lawyers and, in many instances, their co-defendants, had nothing to do with any of these crimes. The decision to charge and prosecute what can only, at best, be characterized as an obstruction of justice case under the RICO statute appears designed to capitalize upon the prejudicial spillover effect that this testimony regarding drugs, murder, and the corrupt Columbian political system, would have upon jurors. At the very least, this testimony makes it difficult for jurors to independently evaluate the lawyer’s conduct in light of the overwhelming criminality of the client. The prosecution spent weeks presenting evidence regarding the millions of pounds of cocaine and billions of dollars collected by the Cali Cartel. They spent at least one week presenting evidence regarding corruption in the presidential electoral process in Colombia and how the election was rigged. There was testimony regarding the Cartel’s capacity for violence, including murder and threats of murder. Prosecutors convinced the judge that the scope of the RICO conspiracy warranted special exceptions to ordinary hearsay rules, such as the “conduit to the co-conspirator’s statement” in order to introduce admissions made by non-parties-non-coconspirators to inculpate the defendants. The judge even permitted the case agent to testify about statements attorney Moran made in court during closing arguments on behalf of Cartel member/defendants, calling them party-admissions. The sheer magnitude of the evidence presented in this case – putting aside the years of extensive pretrial motion practice and the resources required during trial to respond to these heretofore unrecognized evidentiary arguments as well as the prejudice resulting from this type of joint trial in and of itself — would render most defendants unable to afford to defend such a case. See The Champion, RICO Report (Nov. 1996) (discussing impact of mega-trials on right to counsel). Permitting the government to charge and try a case, of this magnitude in this manner, practically guarantees conviction because almost no one has the time, the resources or the ability to properly defend against it. In reality, putting aside extraneous testimony regarding the Cali Cartel, the prosecution’s evidence, all five months worth, essentially boiled down to three things: (1) testimony that one or both of the two lawyers gave money to Cartel defendants’ family members – according to prosecutors, as “hush money,” to prevent them from informing on the Cartel – according to the defense, the money was given to clients’ families either in accord with the clients’ wishes or sometimes as a humanitarian gesture on the lawyer’s part when the client’s family was in need; (2) obtaining affidavits from rank-and-file Cartel associates to either exculpate or prevent the extradition of Cartel members, which the government claimed the lawyers knew were false and which the lawyers claimed contained merely what both client and witness alike told them, making the compilation and presentation of these affidavits an attorney’s sworn duty; and finally, (3) allegations that the lawyers warned Cartel members that charges would be filed against them, which the government contended was to enable flight while the defense countered that such warnings were legal advice - - part and parcel of informing one’s client what to expect, or in order to inform a prospective client that they would soon need representation. For the most part, the allegations that these lawyers had “paid off” Cartel family members were fairly pathetic – the payments were small, by all accounts, ranging from several hundred to several thousand dollars, but especially so since this was the Cali Cartel, the world’s richest and most powerful drug organization, who was supposedly doling out the funds. Bill Moran was alleged to have given, at most, $15,000 over many years to wives of Cartel members. His position was that he gave these small sums of money over a long period of time to people in need. It is particularly disturbing that the government would attempt to deter lawyers from acting as decent human beings and making these humanitarian gestures to a client’s family. The accusations regarding the affidavits were more troubling, particularly, for defendant Abbell, since his law office associate, Francisco Laguna, had turned government informer. Laguna testified that Abbell was complicit in the Cartel’s affairs and in constant communication with Cartel leaders, including its head, Miguel Rodriguez-Orejuela. However, it was in fact, the Spanish-speaker Laguna, who did all the communicating with Rodriguez-Orejuela, among other Cartel members — not Michael Abbell. As expected, the defense hotly contested this informer’s testimony, revealing that Laguna had relocated to Miami to be closer to Cartel leaders, had begun a lavish lifestyle of partying, drug abuse and living well above his means, that it was he who was complicit with Rodriguez-Orejuela and that he used Abbell and their law practice to carry out his own criminal schemes. There was even testimony that after his arrest, Laguna told friends, “If I am going down, I am taking Abbell with me.” There were also some troubling allegations made by defense lawyers from the community, that efforts had been made to threaten or pay them “hush money” regarding their representation of other Cartel associates and/or potential witnesses against Cartel members, and there were allegations, though controverted, that Moran had flat out told prospective defendants to leave the country and had intentionally failed to advise defendants of the possibility of cooperating against the Cartel. The cooperation issue, in and of itself, poses substantial questions which, unfortunately, are beyond the scope of this coolumn. See Tarlow, The Moral Conundrum of Representing the Rat, The Champion (Aug. 1995). At trial, both lawyers put on exceedingly strong defenses. Abbell, by the fact that he had a virtually unassailable record as a government servant for close to 20 years – he was employed as an attorney in the Criminal Division’s International Section at the Department of Justice. Abbell was by all accounts, an academic and an author. As defense lawyer Howard Srebnick told jurors at the first trial, Abbell had, literally, “written the book” on extradition. Abbell had lived a sedate, unimpeachable life with his family in the same modest home in Washington, D.C. for many years, and his wife and two teenage sons attended the trial daily. In contrast to his primary accuser, Francisco Laguna, Abbell did no drugs, lived far beneath his means and had never indicated any need or desire for the enticements that the Cali Cartel had so readily provided to Laguna. Bill Moran, on the other hand, had to explain to the jury, how, in his own personal and professional life, his brash demeanor and aggressive tactics had severely aggravated many of his adversaries, and how what others interpreted as threats on his part, was actually just part of his volatile personality. Bill Moran, by all charitable accounts, is described as “outspoken.” He was dedicated to the defense of his clients and never practiced the “go along and get along” theory of criminal defense. It is not difficult to understand how he earned the animosity of some adversaries. His prickly character is more fully described in this author’s letter sent to Judge Hoeveler for consideration at Moran’s sentencing hearing. However, some trial participants and observers reported that the best closing argument was delivered by Bill Moran, himself, who Judge Hoeveler permitted to give part of his own summation. Others claimed that Bill Moran was his own worst enemy during the trials. This trial lasted five long months and concluded, after lengthy deliberations, for Moran and Abbell, with a verdict of not guilty as to the substantive RICO charge and a mistrial on the remaining four counts, including the RICO and money laundering conspiracies, and the substantive drug charges, after the jury declared itself deadlocked. As to the other defendants, while two were convicted on all counts, the jury acquitted the remaining two, who were alleged to be lower-level “Cartel employees,” Ramon Martinez and Jose Luis Pereira-Salas, defended by talented Miami lawyers, Manuel Dobrinsky, Omar Malone and John Bergandahl. Trial number two for Moran and Abbell, now the sole defendants, began on April 13, 1998. Each had new counsel: Holly Skolnick of the Miami law firm, Greenberg, Traurig for Bill Moran, and nationally prominent criminal defense lawyers Hank Asbill and Bill Moffitt (now NACDL President) of Washington, D.C. for Michael Abbell. This time around the trial lasted almost three months, but it was no less contested than the first. While the government scaled back its presentation of evidence somewhat, its basic theory remained unchanged: that Moran and Abbell used their position as lawyers who defended individuals facing the prospect of, or facing actual criminal charges, to further the purposes of the Cali Cartel. On July 20, 1998, after three weeks of deliberations, the jury returned its verdict, convicting Abbell and Moran of the RICO and money laundering conspiracies but it could not reach a verdict as to two remaining charges, involving conspiring to import and distribute cocaine. However, this verdict did not come without controversy. At the urging of the prosecution and pro-prosecution jurors, Judge Hoeveler became entangled in juror deliberations, calling individuals jurors into court to question them in light of allegations that one “pro-defense” juror was refusing to deliberate. The position of the defense and the juror was that the conflict resulted because the juror was voting not guilty. Ironically, after dismissing this juror, the jury foreperson canceled a request to have certain testimony read back – it turned out that the “non-deliberating” juror had been the one who wished to hear it. The significant issues involving the removal of this juror will be vigorously litigated on appeal. See United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987) (holding that if record reveals any possibility that request to discharge juror resulted from juror’s view of sufficiency of government’s evidence, court must deny request); United States v. Thomas, 116 F.3d 606 (2d Cir. 1997)(same). After the verdict, it was also revealed that another juror may have been conducting independent research during the trial because while still a juror, he had decided to write a book about the case. It was at this point, before the verdict, on July 17, 1999, that Bill Moran, despondent over Judge Hoeveler’s dismissal of this favorable juror, and the continuing nightmare to which he had been subjected, fled the jurisdiction. Post-verdict, in September 1998, he was found in Mexico and returned to the Southern District of Florida, to reside at FCI, Miami, where he was reportedly very busy dispensing free legal advice to the inmates. Six jurors admitted to hearing media accounts of Moran’s disappearance, prior to rendering their verdict. Id. at 13. However, defense motions for a mistrial were denied. Id. Before, during and after Moran’s absence, there were numerous, substantial post-trial motions filed, hearings held and argument presented. These included both motions for judgment of acquittal, made prior to the conclusion of the case, which the judge had not yet ruled on, supplemental motions for judgment of acquittal as well as new trial motions. Judge Hoeveler seriously considered granting a new trial because of the improper dismissal of the pro-defense juror, and even let the lawyers know he was leaning towards granting the motion. He ultimately decided on May 5, 1999, to deny the defendant’s new trial request. The judge also upheld the money laundering convictions, concluding that the defendants “‘conducted the alleged transaction with the knowledge and intent to ‘conceal’ or disguise the nature, the location, the source, the ownership, or the control of the proceeds of unlawful importation and/or distribution of cocaine.’” May 5 Order Denying, in part and Granting, in part, Motions For Judgment of Acquittal at 3. However, on that same day, in a surprising turn of events, he granted, in part, the defense motions for acquittal, dismissing the drug conspiracy charges, because “[n]o evidence was presented by the United States which would suggest that either of the Defendants either directly or indirectly planned to commit such crimes with the persons actively involved in the importation or distribution.” Id. Judge Hoeveler surprisingly and candidly admitted that “there is a likelihood that my view of the evidence to support [the drug counts] as to these defendants in the first case may well have been in error.” Id. at 4. The judge then ordered supplemental briefing and scheduled a hearing to determine the existence, or lack thereof, of evidence supporting the RICO conspiracy convictions. At this hearing, held on May 25, 1999, defense lawyers, Holly Skolnick, Richard Strafer, Hank Asbill and Bill Moffitt argued that Moran and Abbell could not have participated in the “operation and management” of the Cali Cartel’s RICO conspiracy, as the indictment alleged, as such managerial participation is defined in Reves v. Ernst & Young, 507 U.S. 170, 178 (1993). The proof at trial established that they were not “management,” rather, they were outsiders, paid outsiders, but ones who worked sometimes for Cartel members, on a case-by-case basis. Neither man shared in Cartel’s profits – in fact, Moran even had to ask for more business. Neither man was on any type of retainer, nor did either advise the Cartel on anything resembling a daily basis. While perhaps, each or both may have acted unwisely or even unethically regarding their law practice and the judge believed that perhaps each or both committed some other crime, such as obstructing justice, neither were part of the underlying agreement to participate in drug trafficking. Transcript (“Tr.”) May 25, 1999 Hearing in Case No. 93-140 Cr-WMH. Prosecutors, in turn, argued that the lawyers actions, in lawyering, on behalf of the Cartel, prolonged, permitted and concealed its continued existence – incredulously, they even argued that the United States Attorney’s Office had brought this case under the RICO laws in an “attempt to further define the practice of law [in] the criminal defense arena and raise the bar a little bit. . . . ” Id. at 62-63. One day later, Judge Hoeveler rejected the prosecution’s incredulous attempt to regulate criminal defense practice, and dismissed the RICO conspiracy charge against both Moran and Abbell. He found that although the lawyers may have engaged in questionable or even unethical conduct in their law practice, this was insufficient to make them part of a racketeering conspiracy. At sentencing, the judge once again rejected the prosecutor’s arguments. Left only with money laundering charges, the prosecutors urged the judge to sentence both men based upon the total $2 billion laundered by the Cali Cartel on a yearly basis, and also urged application of various enhancements to further increase the penalties. Instead, of the 360 months —life sentences which the prosecution sought, Judge Hoeveler sentenced Bill Moran to a term of five years and Michael Abbell to seven years. Strangely, the case has returned full circle with at least the penalties resembling more closely what Marty Weinberg and Albert Krieger argued to the Justice Department were the maximum that could be applicable. While the lawyer/ defendants certainly were not pleased with the result, there is no denying that they very narrowly escaped a far worse fate. Bill Moran continues to stridently maintain that he is an innocent man wrongly convicted. He will be represented on appeal by Marty Weinberg and Richard Strafer. Michael Abbell has consistently, though less vocally, maintained his innocence as well. It is rumored that Scott Srebnick will handle his appeal. Judge Hoeveler even permitted Abbell to remain free on bond pending appeal. A bright light at the end of the very long and arduously traveled tunnel is that Judge Hoeveler, conservative, by all accounts, found himself pushed too far by this prosecution theory. Taking criminal defense lawyering, even allegedly unethical or, at worst, obstructionist, and attempting to turn it into racketeering and/or drug trafficking would seem preposterous but for the fact that it almost happened in Miami, Florida. Eventually, it was this particular judge, Judge Hoeveler, for whom the prosecution had unabashedly forum-shopped, who recognized the inherent dangers in this prosecution as well as its lack of legal support. That fact may be enough to convince some prosecutors, intent upon regulating the practice of law by using racketeering statutes, that resort to the state bar disciplinary proceedings is a more appropriate alternative. Unanimous Verdicts — Surprising Supreme Court Reversal in CCE Case, But How Far Will it Extend? In a surprising turn of events, on June 1, 1999, the Supreme Court held that in Continuing Criminal Enterprise (“CCE”) prosecutions, brought pursuant to 21 U.S.C.� 848, jurors must unanimously agree not only that a defendant engaged in a “continuing series of violations,” but they must also be unanimous in their agreement about which specific violations constitute this “continuing series.” Richardson v. United States, 119 S. Ct. 1707, (1999). Up until this point, there were conflicting authorities, with the Third Circuit taking the position that jurors must agree unanimously as to which violations comprise the series, United States v. Edmonds, 80 F.3d 810, 822 (3d Cir. 1996) while others found to the contrary. See, e.g., United States v. Hall, 93 F.3d 126 , 129 (4th Cir. 1996); United States v. Anderson, 39 F.3d 331, 350-51 (D.C. Cir. 1994). We have addressed this issue previously not only with respect to unanimity requirements in CCE prosecutions, but also regarding whether or not unanimous jury agreement is required to prove a predicate act in RICO prosecutions. See, The Champion, RICO Report (Dec. 1996; May 1995; April 1992, Sept/Oct. 1986). In resolving the Circuit split regarding unanimity in CCE prosecutions, Richardson does not approve, disapprove or even comment regarding application of its analysis outside the CCE context. At the very least, the potential for extrapolation to other similar statutes, most notably the RICO laws, remains available. In light of the increasing number of RICO prosecutions in the past decade and the large number of individuals presently incarcerated on RICO charges who likely did not receive a unanimity instruction regarding the predicate acts underlying their convictions, this presents a particularly significant issue in criminal law today. Furthermore, there may even be additional crimes, apart from the RICO statute, for example, the Continuing Financial Crimes Enterprise, 18 U.S.C. � 225, to which Richardson’s analysis should apply though the decision itself sheds little light on the judicial reception such arguments will receive. Eddie Richardson was alleged to have organized the Chicago street gang called the “Undertaker Vice Lords.” Mr. Richardson, a/k/a “King of all Undertakers,” purportedly ran the gang, allegedly profiting financially from its “sales activities.” Richardson, 119 S. Ct. at 1709. Apparently, his “undertakings” involved distributing heroin, crack and powder cocaine for a number of years. He was charged with engaging in a continuing criminal enterprise in violation of the CCE statute, which defines the above as involving a violation of the drug statutes where “such violation is part of a continuing series of violations.” 21 U.S.C. � 848(c). This “continuing series of violations” must be undertaken by the defendant in concert with five or more other persons with respect to whom the defendant occupies a position of organizer, supervisor or manager and the defendant must receive substantial income from this continuing series of violations. 21 U.S.C. � 848(c)(2)(A)-(B). At trial, not only did the judge reject the King’s proposed instruction which required jurors to “unanimously agree on which three acts constituted [the] series of violations,” but he then instructed the jury that “you do not . . . have to agree as to the particular three or more federal narcotics offenses committed by the defendant.” Id. Mr. Richardson was convicted and sentenced to life imprisonment without the possibility of parole. Writing for an unusual majority in Richardson, which included Justices Rehnquist, Stevens, Scalia, Souter and Thomas, Justice Breyer set forth a clear, concise and easy to apply analysis. Richardson’s reasoning is basic: federal crimes are made up of elements, generally listed, as such, in the statute. As a matter of first principles, the law has always been clear that the prosecution must prove each element by unanimous verdict. Richardson, 119 S. Ct. at 1710. Regarding this axiom, there was no dispute — however, the prosecution contended that the phrase “series of violations” referred to one element as opposed to the defendant’s position that the “series” was comprised of “several ‘violations,’” each of which must be established by unanimous agreement. Id. The trial court enthusiastically embraced the government’s position that jurors need only agree that a defendant had committed at least three from among the veritable potpourri of underlying violations that it presented and they did not have to agree unanimously as to which three. The Supreme Court reversed. In its decision, the Court recognized that unlike “elements” of crimes, the “means” by which certain criminal elements are committed can be the subject of juror disagreement, provided that there is unanimous agreement that some means, in fact, accomplished the element of the crime. See id at 1710. (discussing permissible juror disagreement re factual proof of force element in robbery – one juror may believe was knife, another may believe was gun). The Court then set forth a three-step inquiry to differentiate when something is an “element” as opposed to one of several means by which an element could be established. The Supreme Court’s tri-part test requires judicial examination of (1) language: looking to the words in the statute, itself; (2) tradition: whether or not this is the type of conduct generally reserved for jury determination; and (3) potential unfairness which could result by not specifically requiring unanimity on a particular point. Id. at 1710-11. In applying the Richardson test, the Court first examined the language of the CCE statute, focusing upon the word “violation,” noting that it is not simply “an act or conduct” — rather, “it is an act or conduct that is contrary to law” – it has a “legal ring” to it. Id. at 1710 The Court stated that by employing this language Congress may have intended that juries focus upon violations in order to assure guilt of the overarching more serious crime, while noting that “[l]inguistically speaking, the statute punishes those kingpins who are involved in a ‘continuing series of violations’ of the drug laws.” Id. at 1711. It rejected the prosecution’s conjecture that Congress must have meant to focus upon the “drug business, not upon the particular violations that constitute the business.” Id. (“that argument . . . begs the question”). In applying Richardson’s second prong, “tradition,” the Court observed that jurors have traditionally decided what conduct violates the law; thus, it is only natural that a jury decide whether each alleged “violation” was an act taken contrary to law. Therefore, treating each violation as a separate “element” requiring unanimity rather than a “means” “is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law.” Id. at 1710. Noting the government’s utter inability to provide any historical basis for treating individual criminal violations as just a “means” toward committing some greater crime, it held that, in fact, federal law has always intended that criminal law elements consisting of independent “violations” be proved by unanimous verdict. Id. at 1711-12. As support for this position, the Court discussed the felon in possession of a firearm statute, which undisputedly requires a unanimous finding that the defendant is a felon, necessarily “requires at a minimum that an earlier factfinder . . . found that the defendant in fact committed that earlier individual crime.” Id. at 1712. Citing also the federal jurisprudence with respect to recidivist statutes, the Court found it significant that some factfinder must have decided that the defendant committed the other crimes in order to augment any punishment. Id. In considering the third part of the Richardson analysis, “potential unfairness,” the Court first discussed particular attributes of the CCE statute that contributed to the need for unanimity regarding these individual violations. The CCE statute’s broad reach, covering at least 90 potential federal drug violations which could comprise the requisite series, counsels against “treating each individual violation as a means, for [the CCE statute’s] breadth aggravates the dangers of unfairness that doing so would risk.” Id. at 1711. Additionally, administering a healthy (and unexpected) dose of reality into this Supreme Court decision, Justice Breyer recognized that in a CCE case, the government often presents evidence of “numerous underlying violations;” thus, not requiring jury unanimity regarding which, among the “numerous underlying violations,” the jury has decided actually constitute the series, “significantly aggravates the risk (present at least to a small degree whenever multiple means are at issue), that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding . . . that where there is smoke there must be fire.” Id. at 1711. Its final policy consideration militating in favor of unanimity for each individual violation was again reality-based, the Court intended to prevent jurors from “avoid[ing] discussion of the specific factual details of each violation” and to prevent any “cover-up of wide disagreement among the jurors about just what the defendant did, or did not, do.” Id. Concerned about losing the prosecutorial advantage obtained by throwing everything at the jurors and seeing what sticks, the government complained that this unanimity requirement would make the statute “too difficult to prove.” With some measure of judicial wit, Justice Breyer observed that government witnesses should not have “inordinate difficulty” testifying about specific incidents of drug activity and “[i]f they do have such difficulty, “would that . . . not tend to cast doubt upon the existence of the requisite ‘series’?” Id. at 1712. Next, the government argued that since no one claims that other aspects of the statute, for example, the five person requirement, must be unanimous, then the “violations” need not be either. But see United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir. 1991) (9th Circuit requires unanimity for 5 person requirement where some of people could not, as a matter of law, have been organized by the defendant). Without deciding whether unanimity was, in fact, required for the five persons or for the “substantial income” requirements, the Court summarily decided that these other aspects of the statute were “significantly different” from the statutory provision it was considering. The most significant aspect of the decision in Richardson was what it did not say. The Court, in no way, other than by the limitations inherent in Richardson’s three-part analysis, narrowed or even attempted to narrow Richardson’s reach to only CCE or any particular statutes. If it so wished, the Richardson Court could have included language limiting its holding only to CCE crimes. However, it did not do so. Rather, what Richardson did was to establish a framework, utilizing the three identified considerations: language, tradition and potential unfairness, for analyzing when and under what circumstances, an individual element of a crime could require a separate specific unanimity instruction. Clearly, Richardson’s principles will not and cannot apply to require specific unanimity jury instructions regarding most “ordinary” crimes and common criminal elements. Using the Supreme Court’s example, while “force” certainly is an element of the crime of robbery, “force” in and of itself, does not necessitate a legal determination. Use of force is not always violative of the law, in fact, there are many lawful instances of the use of force. Thus, an element such as force is distinct from the element of the CCE statute requiring proof of “violations of law.” However, certain other statutes require consideration of the same concerns articulated in Richardson, the most obvious being the RICO statute, 18 U.S.C. � 1962, where “predicate acts” constituting violations of law, must be proven, see 18 U.S.C. � 1961(1), and the Financial Kingpin Statute, requiring proof of a series of financial crimes, 18 U.S.C. � 225(b), but less obvious are statutes such as mail or wire fraud, 18 U.S.C. � 1341, 1343. These statutes require proof of a “scheme to defraud” which necessarily violates state, if not federal, law. Id. The issue of retroactivity, regarding cases already decided and/or currently on appeal is beyond the scope of this column, and we leave that analysis for another day. Nevertheless, we note Richardson’s great potential for application outside the CCE context. Where a crime requires proof of several independent violations of laws, then under Richardson’s analysis, it is an issue traditionally reserved for jury determination and necessitates a unanimous determination. Where the statutory language calls for a legal determination or a finding of a separate “violation” of the law, and where the prosecution presents evidence of “numerous violations,” evidence over and above any minimum proof requirement , as they often do, not only in CCE, but in RICO and fraud cases, then the considerations identified in Richardson appear to require a specific unanimity instruction. There is a profound lesson in Richardson v. United States. While many lawyers believe that they can see the future, in fact predicting the future of the law is not nearly so precise. Even considering the current makeup of the Supreme Court, there is a great deal to be said for perseverance, commitment and refusal to abandon hope when a client’s freedom is at stake. Prior to the grant of certiorari in Richardson, it is hard to imagine that lawyers familiar with RICO and CCE litigation would have seriously believed that cert would be granted let alone a reversal obtained on this issue. While sound legal reasoning supported the argument that a unanimity instruction was required, this did not stop the court of appeal below, in Richardson, from disposing of the issue in two sentences. See United States v. Richardson 130 F.3d. 765, 779 (7th Cir. 1997) (‘we expressly rejected [the unanimity argument] . . . We see no reason to reconsider that result”). After granting certiorari in Richardson, most lawyers probably expected that the Supreme Court would use it as a vehicle to overrule the Third Circuit’s holding in United States v. Echeverri, 854 F.2d 638 (3rd Cir. 1988) and find that no specific unanimity instruction was required. Yet despite these pessimistic expectations, the defense won a sweeping victory by a 6 to 3 vote in an opinion authored by Justice Breyer. “King of All Undertakers” Richardson has now had his life sentence reversed. This was an inspiring piece of lawyering by his attorney William A. Barnett, Jr, from Chicago, Illinois. The extraordinary decision only reemphasizes that even in this day and age, every meaningful argument must be pursued since it is impossible to know what legal position will eventually be accepted by the courts. Everybody’s a Critic in Failed New England Mob RICO Prosecution Incarcerated renegade Patriarca LCN lieutenant Robert F. “Russo” Carrozza, and eight of his associates found themselves facing trial in Worcester, Massachusetts this winter on 78 federal charges, including Racketeering and Conspiracy to Commit Murder. The prosecution, which ultimately presented on over 120 witnesses and introduced over 300 exhibits, proved to be a prime example of why RICO prosecutions invariably result in overly complex mega-trials. The case focused on one of the most violent chapters in the history of the New England LCN, involved significant government overcharging and one of the most embarrassing episodes of mobsters as failed hit men. The defendants were charged with conspiring to kill 14 men, three of whom were actually killed and four of whom were shot or stabbed, during skirmishes over control of the Patriarca Family businesses. Unhappy with the leadership being provided by Francis P. “Cadillac Frank” Salemme Jr. (see, “The Strange World of Whitey Bulger,” The Champion, RICO Report, March 1998), described by one Patriarcha family member as wearing a “tin crown”, Carrozza was allegedly eager to step in. The prosecution relied on testimony of informers who were co-conspirators or even the actual hit men in the case. Ironically none of the four survivors of the botched hits believed the defendants had anything to do with the attempted hits, and none of the four victims identified any of the defendants as being their assailants. A significant portion of the trial testimony came from Sean Cote, who claimed to be a hired hit man, but by all accounts was not very good at his job. Cote, a mob wannabe of sorts, offered firsthand information on more than a dozen murders and assassination attempts, including the botched assassination of Salemme, which was at the heart of the case. Although Cote claimed he took part in several of the attempted hits, according to William F. Doherty of the Boston Globe, Cote “seemed unable to kill anyone.” Even the lead prosecutor in the case, Jeffrey Auerhahn, ridiculed Cote for his incompetence. In one hit, Cote had been forced to use his knife because when he showed up at the hit, he had forgotten to bring his gun. The target survived. Other purported mob members made repeated jokes about Cote’s shooting skills as well as his failure to fire at the heads of the people he was trying to shoot. But after more than three months of testimony from many informers and eleven days of deliberation, all that a jury could agree on was that the government had not proven its case as to twenty-four of the most serious charges, including the RICO and conspiracy charges. Only one defendant, Anthony Ciampi , was convicted of the fairly unimpressive crime of running an illegal poker game out of his social club in East Boston. Two of the defendants, Paul Decologero and Christopher Puopolo were acquitted outright on all charges. Everyone except Puopolo was returned to prison after the verdict, however, because a majority of the defendants were already serving prison sentences on other cases and those that who were not were denied bail on the mis-tried offenses. Yet before the ink on the signed jury forms was even dry, two of the jurors in the case were calling to offer their version of Siskel and Ebert to the AUSA and lead case agent as to why the prosecution’s overly complex “production” had been botched so badly. Even before the jury was out of the parking garage, a male juror was observed in an “animated” discussion with two female jurors critiquing the result. Jurors were said to be troubled by the complexity of the prosecution’s case as well as being concerned with a startling lack of physical evidence. One juror was later actually quoted by the Boston Globe as saying: “ It’s almost like they (the prosecution) threw up a bunch of stuff to see if it would stick.” With all the critical attention coming from the jury in the aftermath of the mistrial, U.S. District Judge Nathaniel M. Gorton wisely decided to summon the defense lawyers and prosecutors to figure out what to do. Unfortunately, however, Judge Gorton refused the defense request to be present while the jurors spoke to the FBI agents or the prosecutors and also denied the defense request to have the meetings recorded. From all accounts, the jurors gave prosecutors quite an earful. One of the many successful defense strategies employed by the lead defense attorneys in the case, W. Theodore Harris, Martin Weinberg, Roger Cox, Thomas J. Butters, and Peter L. Ettenberg, was to highlight to the jury, through the cross-examination of the informer witnesses and argument what a deal with the devil the prosecution had made by hinging its case largely of the testimony of witnesses who had everything to gain by ratting. One defense lawyer, referring to an informer as “this conscienceless man who reads obituaries to break into the homes of people attending funerals,” underscored that living a life of deception had become a well-paying government job description. Speaking of another of the prosecution informers, a defense lawyer asked the jury whether they would even entrust their own car to the witness if he wanted to borrow it, as “the government asked you to trust him with their (the defendants) freedom.” Unlike other more successful RICO prosecutions emanating from the Strike Force, this Worcester debacle had little in the way of corroborating evidence. No wiretaps, no photographs showing the defendants together, no fingerprints and no video was presented to the jurors. In closing arguments, Martin Weinberg railed against the nature of a federal racketeering prosecution with the present federal sentencing guidelines as inherently undemocratic — a system where informers are willing to testify and say anything because they believe it is the only way to “please prosecutors” and escape draconian sentences. Actually telling the jurors that the amount of power sitting at the prosecution table was improper, Weinberg argued that “ there is no parole from lengthy federal prison sentences and only the prosecutor can make a recommendation to depart from sentence guidelines.” Since the first mistrial, the United States Attorney’s Office has consistently asserted that it will retry the seven remaining defendants on the 53 charges on which the jury hung. James B. Farmer, Chief of the Justice Department’s Criminal Division and James D. Herbert, Chief of the Organized Crime Strike Force, tripped over themselves to reassure everyone that the case would be re-prosecuted. Ironically, one of the prosecution’s star informers, “Chipper” Boffoli had his Sentencing Hearing mysteriously rescheduled to an indefinite date following the trial, due to of all things —“bad weather.” The saying must be true only for star government witnesses — “when it rains, it pours.” * * * * Readers are a vital source of information without which this column could not be supplied with current information on RICO developments. Information regarding developments in pending cases, decisions and interesting briefs and motions should be sent to: RICO Report Barry Tarlow 9119 Sunset Boulevard Los Angeles CA 90069 Phone (310) 278-2111 Fax (310) 550-7055
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