United States V. Coiro, 922 F.2D 1008

Page 1 922 F.2d 1008, 32 Fed. R. Evid. Serv. 296 (Cite as: 922 F.2d 1008)

ciency of accusation in general. Most Cited Cases

United States Court of Appeals, Indictment and Information 210 196(7) Second Circuit. UNITED STATES of America, Appellee, 210 Indictment and Information v. 210XIV Waiver of Defects and Objections Michael COIRO, Defendant–Appellant. 210k195 Waiver 210k196 Objections to Indictment or In- No. 1601, Docket 90–1192. formation Argued July 18, 1990. 210k196(7) k. Objections relative to Decided Jan. 3, 1991. duplicity, joinder, and election. Most Cited Cases Defendant's assertion that two counts in indict- Defendant was convicted by jury of conspiring ment failed to charge cognizable offenses and were to violate Racketeer Influenced and Corrupt Organ- multiplicious by charging same conduct were not izations Act, conspiring to obstruct justice, two waived by defendant's failure to make such chal- counts of obstructing criminal investigation, and lenges before trial; neither nature of defendant's two counts of obstructing grand jury investigation, conduct nor fact that counts charged same conduct before the United States District Court for the East- was evident from face of indictment. 18 U.S.C.A. § ern District of New York, Joseph M. McLaughlin, 1510(a); Fed.Rules Cr.Proc.Rule 12(b)(2), (f), 18 J., and he appealed. The Court of Appeals, Walker, U.S.C.A. Circuit Judge, held that: (1) defendant did not waive issue of whether two obstruction of investig- [2] Criminal Law 110 1063(2) ation counts failed to charge cognizable offenses or were multiplicious; (2) charge of obstruction of 110 Criminal Law criminal investigation could be asserted; (3) rule of 110XXIV Review lenity required that defendant be charged with only 110XXIV(E) Presentation and Reservation in single offense of obstruction of criminal investiga- Lower Court of Grounds of Review tion where obstruction arose out of single incident 110XXIV(E)3 Motions for New Trial or involving two individuals; (4) trial court's evidence in Arrest rulings were not an abuse of discretion; and (5) 110k1063 Necessity of Motion for evidence was sufficient to support convictions. New Trial or in Arrest 110k1063(2) k. Indictment and in- Affirmed in part, remanded in part with information. Most Cited Cases structions. Defendant's assertions that obstruction of investigation counts failed to charge cognizable of- West Headnotes fenses and were multiplicious were cognizable on appeal under plain error doctrine, even though de- [1] Indictment and Information 210 196(5) fendant failed to raise them posttrial; issues went to 210 Indictment and Information whether conduct proved was punishable under stat- 210XIV Waiver of Defects and Objections ute charged. 18 U.S.C.A. § 1510(a); Fed.Rules 210k195 Waiver Cr.Proc.Rule 12(b)(2), (f), 18 U.S.C.A. 210k196 Objections to Indictment or In- [3] Obstructing Justice 282 139 formation 210k196(5) k. Objections to suffi- 282 Obstructing Justice

282k134 Offenses Relating to Witnesses or Po- Cases tential Witnesses (Formerly 110k1153(1)) 282k139 k. Influencing testimony; procuring Determination that evidence is admissible after false testimony. Most Cited Cases weighing prejudicial effect against probative value (Formerly 282k5) may not be set aside on appeal unless there is show- Charge of obstruction of criminal investigation ing that trial court abused its discretion, or acted ar- could be asserted against defendant who en- bitrarily or irrationally. Fed.Rules Evid.Rule 403, deavored to obstruct communication of information 28 U.S.C.A. through accomplice who agreed to lie to investigat- or. 18 U.S.C.A. § 1510(a). [7] Conspiracy 91 45

[4] Criminal Law 110 29(1) 91 Conspiracy 91II Criminal Responsibility 110 Criminal Law 91II(B) Prosecution 110I Nature and Elements of Crime 91k44 Evidence 110k29 Different Offenses in Same Transac- 91k45 k. Admissibility in general. tion Most Cited Cases 110k29(1) k. In general. Most Cited Cases Under “rule of lenity,” in cases of ambiguity or Criminal Law 110 338(7) doubt as to congressional intent, only one offense 110 Criminal Law may be charged. 110XVII Evidence [5] Criminal Law 110 29(5.5) 110XVII(D) Facts in Issue and Relevance 110k338 Relevancy in General 110 Criminal Law 110k338(7) k. Evidence calculated to 110I Nature and Elements of Crime create prejudice against or sympathy for accused. 110k29 Different Offenses in Same Transac- Most Cited Cases tion Trial court did not abuse its discretion in ad- 110k29(5) Particular Offenses mitting evidence regarding drug-trafficking arrest 110k29(5.5) k. In general. Most Cited of two members of crime organization after weigh- Cases ing probative value against prejudicial effect; evid- (Formerly 110k29(5)) ence was relevant to show existence of narcotics Rule of lenity required that defendant could be enterprise charged in indictment, Racketeer Influ- charged with only single offense of obstruction of enced and Corrupt Organizations count charged de- criminal investigation where obstruction arose out fendant with being member of drug-trafficking en- of single incident involving two individuals. 18 terprise, and evidence was presented in summary U.S.C.A. § 1510. fashion, moreover, evidence was admissible to inform jury of background of conspiracy charged. [6] Criminal Law 110 1153.3 Fed.Rules Evid.Rules 403, 404, 28 U.S.C.A.

110 Criminal Law [8] Criminal Law 110 368.20 110XXIV Review 110XXIV(N) Discretion of Lower Court 110 Criminal Law 110k1153 Reception and Admissibility of 110XVII Evidence Evidence 110XVII(F) Other Misconduct by Accused 110k1153.3 k. Relevance. Most Cited 110XVII(F)2 Admissibility in Prosecu-

tions for Particular Offenses in General Organizations conviction. 18 U.S.C.A. § 1962(d). 110k368.20 k. Conspiracy, racketeering, and money laundering. Most Cited Cases [10] Racketeer Influenced and Corrupt Organiz- (Formerly 110k374) ations 319H 26

Racketeer Influenced and Corrupt Organiza- 319H Racketeer Influenced and Corrupt Organiza- tions 319H 91 tions 319HI Federal Regulation 319H Racketeer Influenced and Corrupt Organiza- 319HI(A) In General tions 319Hk24 Pattern of Activity 319HI Federal Regulation 319Hk26 k. Number of predicate acts. 319HI(C) Criminal Remedies and Proceed- Most Cited Cases ings 319Hk91 k. Indictment and information. Racketeer Influenced and Corrupt Organiza- Most Cited Cases tions 319H 27 Evidence regarding defendant's bribery of em- 319H Racketeer Influenced and Corrupt Organiza- ployee of county district attorney was not improp- tions erly admitted as an uncharged crime, even though 319HI Federal Regulation indictment did not specifically mention bribe; de- 319HI(A) In General fendant received notice of bribery as part of Rack- 319Hk24 Pattern of Activity eteer Influenced and Corrupt Organizations count 319Hk27 k. Number of schemes, and government expressly identified conversation goals, episodes, or transactions. Most Cited Cases regarding bribery as example of defendant's role in enterprise, and bribery was relevant to crime Racketeer Influenced and Corrupt Organiza- charged, and was not unduly prejudicial. Fed.Rules tions 319H 28 Evid.Rule 404, 28 U.S.C.A. 319H Racketeer Influenced and Corrupt Organiza- [9] Racketeer Influenced and Corrupt Organiza- tions tions 319H 95 319HI Federal Regulation 319HI(A) In General 319H Racketeer Influenced and Corrupt Organiza- 319Hk24 Pattern of Activity tions 319Hk28 k. Continuity or relatedness; 319HI Federal Regulation ongoing activity. Most Cited Cases 319HI(C) Criminal Remedies and Proceed- Demonstrating Racketeer Influenced and Cor- ings rupt Organizations “pattern” requires proof of mul- 319Hk92 Evidence tiple racketeering predicates, which can be part of 319Hk95 k. Weight and sufficiency. single scheme, that are related and that amount to, Most Cited Cases or threaten likelihood of, continued criminal activ- Evidence, including defendant's conversations ity. 18 U.S.C.A. §§ 1961(5), 1962(c). concerning his and fellow attorney's holding and laundering of money, and evidence that defendant [11] Conspiracy 91 23.5 was fully aware of nature of enterprise in which he was participant, was sufficient to support trial 91 Conspiracy court's finding that defendant knowingly helped 91II Criminal Responsibility conceal and launder drug proceeds, and was suffi- 91II(A) Offenses cient to support Racketeer Influenced and Corrupt 91k23 Nature and Elements of Criminal

Conspiracy in General ations 319H 95 91k23.5 k. Constitutional and statutory provisions. Most Cited Cases 319H Racketeer Influenced and Corrupt Organiza- Defendant, charged with conspiring to violate tions Racketeer Influenced and Corrupt Organizations 319HI Federal Regulation Act (RICO) was provided with fair notice that his 319HI(C) Criminal Remedies and Proceed- contemplated conduct violated RICO, and thus ings “pattern” requirement was not unconstitutionally 319Hk92 Evidence vague as applied to defendant; defendant's contem- 319Hk95 k. Weight and sufficiency. plated conduct included bribery and money laun- Most Cited Cases dering on behalf of narcotics enterprise. 18 Evidence of defendant's activities involving U.S.C.A. §§ 1961(5), 1962(c); U.S.C.A. bribery and money laundering on behalf of organ- Const.Amends. 1, 5, 14. ized crime was sufficient to establish a Racketeer Influenced and Corrupt Organization Act “pattern,” [12] Criminal Law 110 13.1 including requisite relatedness and continuity; evidence indicated that criminal organization was long- 110 Criminal Law term criminal enterprise engaged in narcotics traf- 110I Nature and Elements of Crime ficking, that defendant was active participant, and 110k12 Statutory Provisions that instances of defendant's bribery and money 110k13.1 k. Certainty and definiteness. laundering were calculated, connected activities in Most Cited Cases furtherance of enterprise. 18 U.S.C.A. §§ 1961(5), (Formerly 110k13.1(1)) 1962(c). In absence of First Amendment considerations, vagueness challenges must be considered in light of *1010 Gerald L. Shargel (Alan S. Futerfas, New facts of particular case. U.S.C.A. Const.Amends. 1, York City, of counsel), for defendant-appellant. 5, 14. John Gleeson, Asst. U.S. Atty, Brooklyn, N.Y. (An- [13] Racketeer Influenced and Corrupt Organiz- drew Maloney, U.S. Atty. E.D.N.Y., David C. ations 319H 2 James, Asst. U.S. Atty., of counsel), for appellee.

319H Racketeer Influenced and Corrupt Organiza- tions Before WINTER, MAHONEY and WALKER, Cir- 319HI Federal Regulation cuit Judges. 319HI(A) In General 319Hk2 k. Constitutional and statutory WALKER, Circuit Judge: provisions. Most Cited Cases Following a jury trial before then-District Statute was not invalid as applied to defendant Judge Joseph M. McLaughlin in the Eastern District simply because other marginal cases, real or ima- of New York, appellant Michael Coiro, an attorney gined, criminal or civil, might involve facts that and the sole defendant at trial, was convicted of create undue uncertainty as to application of Rack- conspiring to violate the Racketeer Influenced and eteer Influenced and Corrupt Organizations Act's Corrupt Organizations Act (“RICO”), 18 U.S.C. § pattern requirement to defendant's activities. 1962(d); conspiring to obstruct justice and to ob- U.S.C.A. Const.Amends. 5, 14; 18 U.S.C.A. §§ struct a criminal investigation, in violation of 18 1961(5), 1962(c). U.S.C. § 371; two counts of obstructing a criminal investigation, in violation of 18 U.S.C. § 1510(a); [14] Racketeer Influenced and Corrupt Organiz- and two counts of obstructing a grand jury investig-

ation, in violation of 18 U.S.C. § 1503. Coiro was giero, Angelo Ruggiero's brother. Since 1975, Sal- sentenced to a 15–year term of imprisonment and a vatore, although a fugitive facing narcotics and tax $25,000 fine on the RICO count, and to concurrent evasion charges, continued to engage in drug traf- terms of five years on each of the remaining counts. ficking. After he died in a crash on May 6, 1982, the FBI and the grand jury began to inquire into his On appeal, Coiro contends that his obstruction previous activities, into possible harboring by oth- convictions under 18 U.S.C. § 1510(a) should be ers, and into the location of assets he had amassed reversed because his conduct was not cognizable from the narcotics business. During this period, under that statute, and that one of those counts Coiro helped to create false stories to be fed to the should be vacated as multiplicitous. Coiro also ar- authorities, conceal evidence, and influence the gues that the district court erred in admitting evid- testimony of prospective witnesses, in order to ob- ence of the drug-trafficking arrest of two members struct the pending law enforcement and grand jury of the Ruggiero organization, and of Coiro's bribing investigations. The nature of Coiro's commitment to an employee of the Nassau County District Attor- the enterprise can be inferred from a conversation ney's office. He further alleges that one of the intercepted on May 12, 1982: counts of obstructing a grand jury investigation was not supported by sufficient evidence. Coiro also GOTTI: You're not our lawyer, you're one of us challenges the constitutionality of the RICO pattern as far as we're concerned. requirement, 18 U.S.C. § 1962(c), and claims that the government failed to establish such a pattern of *1011 COIRO: I know it, Genie, and I feel that racketeering activity in this case. way. That's a honor.

BACKGROUND The RICO Charge Coiro was a criminal defense attorney whose The RICO charge was based on Coiro's know- clients included Angelo Ruggiero, Gene Gotti and ing participation in Angelo Ruggiero's narcotics or- John Carneglia, partners in a large narcotics enter- ganization and his furtherance of its illegal pur- prise. Coiro was indicted in 1983, along with these poses through bribery and money laundering. three and others, as a result of FBI and grand jury investigations begun in late 1981 into the Ruggiero On May 21, 1982, Coiro, Ruggiero and Gotti enterprise. were recorded discussing whether they should pay additional money to an official in the Nassau The evidence at Coiro's trial, based in part on County District Attorney's office for further inform- conversations recorded by the FBI with electronic ation regarding that office's investigations. The of- surveillance, revealed Coiro's involvement in the ficial had previously been paid to provide a confid- narcotics organization at least as early as February, ential list of organized crime figures residing in 1982. Coiro, who had last represented a member of Nassau and Suffolk counties. Coiro brought that list the enterprise in 1975, now helped them by bribing to the meeting and the three men quoted from it and facilitating the bribing of law enforcement and during the conversation. Ruggiero told Gotti: other officials to obtain confidential information, by assisting the concealment and laundering of nar- Soon as he hears anything, he'll be in touch with cotics proceeds, and by otherwise using his position us immediately. The guy's looking for a nickel, as an attorney to assist other members of the enter- he will continue looking, anything at all. And, I prise in avoiding criminal prosecution. gave 'em a dime already.

In particular, Coiro assisted the enterprise after Coiro, supporting the additional bribe, ob- the death of one of its members, Salvatore Rug- served that “[f]orewarned is forearmed.” Gotti

agreed, noting that the source was “close to RUGGIERO: I'm not talking about large, large. Dillon,” the Nassau County District Attorney. After deciding that the extra bribe was worth it “[j]ust to GOTTI: Before you hold anything, Mike. I got to get the hook in there,” Gotti emphasized that Coiro ask you one more thing. Are you holding any- was the one dealing with this source: “Mike, all body else's ...? we're dealing with is you, and you deal with the COIRO: No, that's all straightened out. guy.” GOTTI: [A]nd nobody's to know, but us. Coiro had additional corrupt sources in Brook- lyn and Queens. On May 12 and May 21, the gov- On May 21, Ruggiero and Coiro again dis- ernment intercepted conversations in which Gotti cussed the laundering of narcotics proceeds. Rug- and Coiro discussed a source Coiro had in the East- giero told Coiro: “[M]y problem is getting this ern District. On May 13, in a conversation intercep- money to Raymond [Kobus],” a young attorney ted by the government, Coiro spoke to Ruggiero working for Coiro, and said he wanted to “give him about his source in Queens, who apparently was [Kobus] a [percentage] point on the money” for aware of sealed materials. “cash[ing]” the bills, i.e., changing small bills into large ones. Coiro objected to paying Kobus too Further, Coiro was involved in the organiza- much: “I wanted him to know there are certain tion's hiring of an individual, named Jack Conroy, things in this life that he's gotta do, and he's just to detect electronic surveillance and bribe telephone gotta do it and he don't say a word.” Coiro stated company employees for information on wiretaps. In that he had already told Kobus that “if they're mak- an April 25, 1982 conversation, Ruggiero apprised ing money you could rest assured of one thing, Carneglia of Conroy's source in the telephone com- you're gonna make money.” On Coiro's instruc- pany, whereupon Carneglia observed that “This tions, Kobus later went to Ruggiero's house to pick guy'll become a hook.” In response to Carneglia's up the money. inquiry as to Conroy's trustworthiness, Ruggiero said, “I asked Mike Coiro today. He said, listen, *1012 The Obstruction Charges John McNally recommended him. Go to sleep with The various obstruction of justice charges on him.” On May 8, Coiro, Ruggiero and Gotti talked which Coiro was convicted and which he chal- about wiretaps Conroy had identified. When Gotti lenges here were based on his conduct in the after- asked, “[c]ould we put stock into this guy,” Coiro math of Salvatore Ruggiero's death. The two counts responded, “Yeah, yeah, put stock in him. The guy, of obstructing a criminal investigation were based guy worked for ... years in the P.D.” Later, Rug- upon the fabricated story meant for the FBI that giero noted that he had recently paid Conroy in Coiro helped create. Coiro was convicted on two Coiro's presence, which Coiro acknowledged. counts of endeavoring to obstruct the grand jury investigating the harboring of Salvatore Ruggiero. Coiro also assisted the Ruggiero organization Those charges stemmed from Coiro's counseling by helping to conceal the proceeds of narcotics traf- others to conceal and destroy evidence, to liquidate ficking. The May 12 conversation among Coiro, property derived from Salvatore's fugitive drug traf- Ruggiero and Gotti is instructive: ficking, counseling others to influence the testi- RUGGIERO: Ah, let me ask you something mony of prospective witnesses, helping to launder Mike.... If I get some money.... Will you hold it? Angelo Ruggiero's narcotics proceeds, counseling Angelo Ruggiero to testify falsely, and finally, of- COIRO: Yeah. fering himself to testify falsely.

The specific events leading to Coiro's obstruct- cussed selling his brother's house in Florida at a ive conduct began on May 6, 1982, when the Feder- discount, Coiro agreed, stating, “Salvage what ya al Aviation Administration notified Alfred Del- can.” On May 16, when Coiro and Ruggiero sorted lentash of the crash of the private jet carrying Sal- through the papers taken from Salvatore's home, in- vatore Ruggiero. Dellentash was a drug smuggling cluding bills, checks, bank records and a phone partner of Salvatore and co-owner of the jet. Del- book—all pertinent to a harboring investiga- lentash and Wayne Debany, another former drug tion—Coiro advised Ruggiero to “get rid of all smuggling associate, drove to Salvatore's house in this.” Subsequently, on May 21, Ruggiero told New Jersey, meeting Carneglia, Angelo Ruggiero, Coiro that his brother had $192,000 worth of stock and Gene Gotti, whom they notified of Salvatore's that Ruggiero intended to liquidate right away. death. Coiro agreed, adding, “[D)on't even waste any time.” Angelo Ruggiero, who supposedly had no contact with his brother, had actually been in continu- After the agents interviewed Estelle Mitchell, ous contact with his brother for the previous several Salvatore's sister-in-law, and threatened a grand years. Ruggiero was concerned about possible ex- jury subpoena, Ruggiero and Coiro met her and her posure to harboring charges as well as locating and mother, Dorothy Rubin, on May 17 to express con- acquiring his brother's accumulated narcotics as- cern over the pending investigation. However, Rug- sets. He directed the removal of any evidence from giero and Coiro later concluded that Rubin and his brother's house that might link him to Salvatore. Mitchell might not cooperate with their efforts to deceive the authorities. Coiro noted: “They're going Also concerned that the FBI would contact De- to the weakest link in the chain. ... you're not deal- bany and Dellentash to inquire as to how Ruggiero ing with people like us.” On May 22, after Mitchell knew that his brother died, Ruggiero summoned the had been subpoenaed, Coiro and Ruggiero dis- two to his home on the next day. When they ar- cussed ways to influence her and Rubin to testify rived, Ruggiero, Carneglia, Gotti and Coiro were falsely. When Ruggiero asked Coiro to try to find already present. The group discussed how to ex- somebody to speak to their lawyer, Coiro replied, “I plain Ruggiero's knowledge of Salvatore's death already did,” and stated that he was trying to find since he was supposedly unaware of Salvatore's “somebody who knows him.” Later,*1013 after dis- whereabouts. Coiro rejected stories he did not think cussing having Willie DiSapio, Rubin's ex-husband, would be effective, and finally approved the false attempt to influence Mitchell and Rubin, Coiro story that would be given to the FBI. The investig- stated, “Well, that's what I figured that will be the ators would be told that, upon learning from the only guy that, that might be able to get to them.” FAA of Salvatore Ruggiero's death, Debany and Dellentash went to his home, whereupon they dis- On May 21, Coiro also helped prepare Rug- covered an envelope marked “In case of emer- giero himself to testify falsely before the grand jury gency” containing the address and phone number of so as to limit Ruggiero's exposure to a harboring his parents. They would next say that Debany then charge. Coiro instructed him to remember that, went to the parents' house and told them of their “We've had negotiations going to bring your broth- son's death, whereupon Angelo was informed. The er back. He always contacted us.” Ruggiero noted, day after this story was concocted, Dellentash told however, that this story ran afoul of the fact that it in part to an FBI agent who was investigating the there was a wiretap on his phone that would reveal possible harboring of Salvatore and events in the that Salvatore had never called his home. Coiro wake of his death. then suggested the story that Salvatore always called Rubin and told her to contact Angelo. When On May 8, 1982, when Angelo Ruggiero dis-

Ruggiero rejected that story, Coiro volunteered violation of any criminal statute of the United himself as the fictitious link. States by any person to a criminal investigator....

DISCUSSION See Pub.L. 90–123, § 1(a), Nov. 3, 1967, 81 FN1 I. Challenges to Obstruction of Criminal Investiga- Stat. 362. tion Counts [1][2] Coiro asserts that the two obstruction of FN1. Pub.L. 97–291, § 4(e), Oct. 12, 1982, investigation counts, based on his participation in 96 Stat. 1253, amended this section in part the concocting of the false story for Debany (Count by striking out “, misrepresentation, intim- Seven) and Dellentash (Count Eight) to tell the in- idation, or force or threats thereof” after vestigators, fail to charge cognizable offenses under “bribery”. 18 U.S.C. § 1510(a) and are multiplicitous, since Coiro argues that § 1510(a) does not apply they charge the same conduct. The government ar- where the person who endeavors to obstruct the gues that such challenges “to a potential defect in communication of information does so through an the indictment” should have been made before trial accomplice who agrees to lie to the investigator. He and that, since they were not, Coiro has waived his is incorrect. Section 1510 is violated “whenever an claim. Fed.R.Crim.P. 12(b)(2); 12(f). But neither individual induces or attempts to induce another the nature of Coiro's conduct nor the fact that person to make a material misrepresentation to a Counts Seven and Eight charge the same conduct criminal investigator.” United States v. St. Clair, was evident from the face of the indictment. This 552 F.2d 57, 58 (2d Cir.) (per curiam), cert. denied, could only be known upon the receipt of evidence 433 U.S. 909, 97 S.Ct. 2976, 53 L.Ed.2d 1094 that Coiro on a single occasion on May 7, 1982 re- (1977). See also United States v. Daly, 842 F.2d viewed false stories to be given to the investigators 1380, 1392 (2d Cir.), cert. denied sub nom., Giar- with Ruggiero, Carneglia, Gotti, Debany, and Del- dina v. United States, 488 U.S. 821, 109 S.Ct. 66, lentash, until Coiro approved the one that would be 102 L.Ed.2d 43 (1988); United States v. Fitterer, used. Further, we find that the two issues, which go 710 F.2d 1328, 1330–31 (8th Cir.), cert. denied, to whether the conduct proved is punishable under 464 U.S. 852, 104 S.Ct. 165, 78 L.Ed.2d 150 the statute charged, are cognizable on appeal under (1983). the plain error doctrine, even though Coiro failed to raise them post-trial. See United States v. DiGeron- Coiro's argument is supported by the Fifth Cir- imo, 598 F.2d 746, 752 (2d Cir.), cert. denied, 444 cuit's holding in United States v. Cameron, 460 U.S. 886, 100 S.Ct. 180, 62 L.Ed.2d 117 (1979). F.2d 1394, 1400–02 (5th Cir.1972). But we have already rejected in St. Clair the reading of the legis- [3] Coiro first argues that the two investigation lative history *1014 followed in Cameron and, at obstruction counts, based on his participation in the least to the extent that Cameron purports to require concocting of the false story for Dellentash and De- that the misrepresentations be made to the one who bany to tell the investigators, fail to charge cogniz- communicates with the investigator, instead of able offenses under 18 U.S.C. § 1510(a). solely to the investigator, we decline to follow it. When the relevant conduct occurred, 18 U.S.C. See United States v. Fitterer. Thus, it was not error § 1510(a), in pertinent part, punished: to charge Coiro with a violation of § 1510(a) based on his conduct on May 7, 1982. Whoever willfully endeavors by means of bribery, misrepresentation, intimidation, or force Coiro also attacks the two § 1510 counts, Sev- or threats thereof to obstruct, delay, or prevent en and Eight, because they derive from a single the communication of information relating to a meeting where the story was constructed and trans-

mitted simultaneously to Debany and Dellentash. this in a single endeavor. He argues that the two counts charge the same conduct and are therefore multiplicitous, so that one of We disagree with the government's reading of them must be vacated. The government admits that the statute. The modification of “person” by the the interfering with Debany and Dellentash oc- word “any” makes that phrase ambiguous. In cases curred in a single incident, but responds that “it in this and other circuits, the word “any” has seems likely that Congress intended to make the “typically been found ambiguous in connection tampering of each witness a separate offense.” with the allowable unit of prosecution,” for it con- templates the plural, rather than specifying the sin- [4] The relevant inquiry in determining the unit gular. United States v. Kinsley, 518 F.2d 665, 668 of prosecution under a criminal statute is what Con- (8th Cir.1975) (possession of “any firearm” under gress intended. “When Congress has the will [to 18 U.S.C. § 1202(a) ambiguous on whether unit of define a particular offense] it has no difficulty in prosecution is single firearm); see Bell v. United expressing it....” Bell v. United States, 349 U.S. 81, States, supra (knowing transport of “any woman or 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). In con- girl” ambiguous as to whether unit of prosecution is ducting the inquiry, we are informed by the rule of single female); United States v. Rivera Ramos, 856 lenity, which dictates that in cases of ambiguity or F.2d 420, 422 (1st Cir.1988), cert. denied, 493 U.S. doubt as to Congressional intent, only one offense 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989) (finding may be charged. See Bell, 349 U.S. at 83, 75 S.Ct. unit of prosecution in 18 U.S.C. § 111, which pro- at 622; United States v. Johnpoll, 739 F.2d 702, 715 scribes assault of “any [federal officer]” to be num- (2d Cir.1984), cert. denied, 469 U.S. 1075, 105 ber of acts, rather than number of officers); United S.Ct. 571, 83 L.Ed.2d 511 (1984), reh'g denied, 469 States v. Pelusio, 725 F.2d at 168 (statutory pro- U.S. 1197, 105 S.Ct. 982, 83 L.Ed.2d 983 (1985); scription of receipt of “any firearm or ammunition” United States v. Pelusio, 725 F.2d 161, 169 (2d by felon found ambiguous); cf. Sanders v. United Cir.1983); see also United States v. Bass, 404 U.S. States, 441 F.2d 412, 414 (10th Cir.), cert. denied, 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) 404 U.S. 846, 92 S.Ct. 147, 30 L.Ed.2d 82 (1971) (rule supports two policies: (1) giving of fair warn- (under 26 U.S.C. § 5861, which proscribes posses- ing to the world at large, and (2) leaving the defini- sion of “a [unregistered] firearm,” unit of prosecution of crimes within the province of the legislature, tion is each firearm). rather than the judiciary). Further, § 1510 speaks in terms of the act of [5] Here, neither the language of the statute nor obstructing, as well as the number of potential the legislative history yields a clear answer as to sources of information. Its language proscribes an what Congress intended as the unit of prosecution “endeavor” to obstruct the communication of in- under § 1510. Section 1510 does refer to the indi- formation. Under this reading, the single incident in viduals whose communication is obstructed. The *1015 which Coiro spoke to both Debany and Del- statute prohibits interference with communication lentash would be but a single statutory violation. “by any person” to a criminal investigator. The government argues this language must be read as an The legislative history does not clarify the am- indication that Congress meant to make each indi- biguity in the statutory language. The government vidual interfered with the subject of a separate quotes the House Report accompanying the bill, see count under the statute. Obstructing both Debany H.R.Rep. No. 658, 90th Cong., 1st Sess. 1, reprin- and Dellentash from communicating information to ted in 1967 U.S.Code Cong. & Admin. News 1760, the criminal investigator would thus constitute two 1761, for the proposition that the unit of prosecu- § 1510 violations, although Coiro accomplished tion is the number of individuals tampered with. The Report states, “It is our intention that the

[statute cover the] actual procurement by a party of of a criminal investigation “with instructions to another party's misrepresentation....” (emphasis ad- have the District Court exercise its discretion to va- ded), but the thrust of the sentence is to avoid a cate one of the[m].” 470 U.S. at 865, 105 S.Ct. at construction that would confine the misrepresenta- 1673. See also United States v. Reed, 639 F.2d 896, tion to the person obstructing, and not to define the 904 n. 6 (2d Cir.1981). unit of prosecution. See United States v. St. Clair, supra. Elsewhere in the House Report, an analysis II. Coiro's Other Claims of the bill is offered which emphasizes the conduct Coiro asserts that the district court erroneously of the individual, e.g., obstructing the communica- admitted evidence regarding the drug-trafficking ar- tion of information to an investigator, rather than rest of Salvatore Greco and William Cestaro, two the number of sources of information tampered members of the Ruggiero organization, because its with. prejudicial effect outweighed the probative value of the evidence. Fed.R.Evid. 403. The two men were [The proposed legislation] would prohibit willful arrested after they met and exchanged packages, attempts, by means of bribery, misrepresentation, four pounds of heroin from Greco to Cestaro and intimidation ... to obstruct, delay, or prevent the two carry bags containing $150,000 from Cestaro to communication to a Federal criminal investigator Greco. The government's evidence included the of information relating to a violation of a Federal heroin and pictures of the carry bags and the criminal law. The subsection would also prohibit money. injuring any person ... on account of his communicating such information. [6] A determination that evidence is admissible after Rule 403 weighing may not be set aside unless 1967 U.S.Code Cong. & Admin. News at 1763 there is a showing that the court abused its discre- (emphasis added). The Senate Report accompany- tion, or acted arbitrarily or irrationally. United ing the bill contains the identical language. See States v. DiTommasso, 817 F.2d 201, 217 (2d S.Rep. No. 307, 90th Cong., 1st Sess. at 2. Cir.1987); United States v. Robinson, 560 F.2d 507, 514 (2d Cir.1977) (en banc), cert. denied, 435 U.S. We find that Congress has not explicitly 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). defined the unit of prosecution under § 1510, either in the statute itself or in the legislative history ac- [7] The evidence of Cestaro and Greco's arrest companying the statute. Accordingly, the rule of was relevant to show the existence of the narcotics lenity is applicable, and one of the two counts char- enterprise charged in the indictment. The RICO ging the § 1510 violation as to Debany and Del- count charged Coiro with being a member of a lentash must be vacated. This is true, even though drug-trafficking enterprise, and with holding and Coiro's sentences on the two counts were concur- helping launder the proceeds of that business. rent. A defendant suffers consequences of convic- Moreover, the evidence regarding the arrests*1016 tion apart than the sentence actually served. Such is admissible under Rule 404 “ ‘to inform the jury collateral consequences may include enhanced pen- of the background of the conspiracy charged,’ ” and alties under a recidivist statute, the future use of the “ ‘to complete the story of the crimes charged.’ ” conviction for impeachment of credibility, and the United States v. Roldan–Zapata, 916 F.2d 795, 804 social stigma resulting from conviction. The second (2d Cir.1990) (quoting United States v. Brennan, conviction is unauthorized punishment for the same 798 F.2d 581, 589 (2d Cir.1986)); United States v. offense, and must be vacated. Ball v. United States, Harris, 733 F.2d 994, 1006 (2d Cir.1984). The 470 U.S. 856, 865, 105 S.Ct. 1668, 1673, 84 evidence regarding the arrest of Cestaro and Greco, L.Ed.2d 740 (1985). Following Ball, we remand the which was presented in a summary fashion, did not two convictions to the district court for obstruction unfairly prejudice Coiro so as to warrant exclusion

under Rule 403, regardless of his belated offer to 1960, 95 L.Ed.2d 531 (1987). Viewing the evidence stipulate to the arrests. in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. [8] Coiro also objects to the government's in- 457, 469, 86 L.Ed. 680, reh'g denied, 315 U.S. 827, troduction of evidence regarding his bribery of the 62 S.Ct. 629, 86 L.Ed. 1222 (1942), and drawing all employee in the Nassau County District Attorney's reasonable inferences in favor of the jury's verdict, office. He claims that the indictment, which did not see, e.g., United States v. Khan, 787 F.2d 28, 33–34 specifically mention the bribe, did not give notice (2d Cir.1986), we easily conclude that the jury of this charge, and that the evidence is inadmissible could rationally have found beyond a reasonable under Rule 404 because it is proof of an “uncharged doubt that Coiro knowingly helped conceal and crime.” He further alleges that the evidence should launder drug proceeds. See United States v. Resto, have been excluded under Rule 403 because any 824 F.2d 210, 212 (2d Cir.1987) (quoting Jackson probative value was outweighed by its prejudicial v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, effect. These claims are without merit. 61 L.Ed.2d 560 (1979)). The evidence on this score, including Coiro's conversations with Rug- In 1984, Coiro received notice of the bribery as giero and Gotti concerning his and Kobus's holding part of the RICO count when he obtained from the and laundering of money, was more than ample. government a copy of the tape-recorded conversa- Coiro's claim that he did not know that the money tion of May 21, 1982 among Coiro, Ruggiero and represented proceeds of narcotics trafficking, based Gotti discussing it. Later, in response to Coiro's in part on a statement by Ruggiero made in Coiro's motion to suppress that tape on attorney-client priv- presence denying he was involved in selling drugs, ilege grounds, the government expressly identified is simply unavailing in the face of evidence from the conversation as an example of Coiro's role in which the jury could infer that Coiro was fully the enterprise. aware of the nature of the enterprise in which he The evidence of the Nassau County bribery was a participant. was clearly relevant to the crimes charged as [10][11] Finally, Coiro attacks the RICO pat- “conduct designed to prevent Government detection tern requirement, 18 U.S.C. §§ 1962(c) and 1961(5) of the illegal activities of the members of the enter- , arguing first that it is unconstitutionally vague be- prise,” as alleged in the RICO count. Since the cause courts have had difficulty defining a “pattern evidence was directly probative of a central allega- of racketeering activity,” and also that, apart from tion in the indictment, the fact that it may also have its constitutionality, his conduct in this case did not been probative of a separate uncharged crime is ir- establish such a pattern. Currently, demonstrating a relevant. Finally, it was not unduly prejudicial un- RICO pattern requires proof of multiple racketeer- der Rule 403. ing predicates—which can be part of a single [9] Coiro next asserts that there was insuffi- “scheme”—that are related and that amount to, or cient evidence to support the money laundering al- threaten the likelihood of, continued criminal activ- legation against Coiro in the RICO count. This ity. *1017H.J. Inc. v. Northwestern Bell Telephone claim borders on the frivolous. A defendant chal- Co., 492 U.S. 229, 109 S.Ct. 2893, 2898–2902, 106 lenging the legal sufficiency of trial evidence bears L.Ed.2d 195 (1989). See also United States v. In- a “heavy burden.” United States v. Roman, 870 delicato, 865 F.2d 1370, 1381–84 (2d Cir.), cert. F.2d 65, 71 (2d Cir), cert. denied, 490 U.S. 1109, denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989); United (1989). We have previously found that RICO was States v. Gaviria, 805 F.2d 1108, 1116 (2d not unconstitutionally vague in a variety of applica- Cir.1986), cert. denied, 481 U.S. 1031, 107 S.Ct. tions, see United States v. Ruggiero, 726 F.2d 913,

923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. RICO pattern, including the requisite relatedness 118, 83 L.Ed.2d 60 (1984); United States v. Huber, and continuity. As the jury was charged, a threat of 603 F.2d 387, 393 (2d Cir.1979), cert. denied, 445 continuity may be established if the “predicates U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); themselves involve a distinct threat of long-term United States v. Parness, 503 F.2d 430, 440–42 (2d racketeering activity, either implicit or explicit,” or Cir.1974), cert. denied, 419 U.S. 1105, 95 S.Ct. “where the predicates can be attributed to a defend- 775, 42 L.Ed.2d 801 (1975), and we so find here, ant operating as part of a long-term association that notwithstanding comments in the concurring opin- exists for criminal purposes.” H.J. Inc., 109 S.Ct. at ion in H.J. Inc. See 109 S.Ct. at 2909 (Scalia, J., 2902; see also Indelicato, 865 F.2d at 1383–84 concurring). (“[w]here the enterprise is an entity whose business is racketeering activity, an act performed in further- [12][13] In the absence of first amendment ance of that business automatically carries with it considerations, vagueness challenges must be con- the threat of continued racketeering activity”). sidered in light of the facts of the particular case. See New York v. Ferber, 458 U.S. 747, 767, 102 Coiro's assertion to the contrary notwithstand- S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982); United ing, the predicate acts with which Coiro was States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, charged did not derive solely from the period im- 319, 46 L.Ed.2d 228 (1975). As RICO was plainly mediately following Salvatore Ruggiero's death. intended to encompass the illegal activities of or- The jury was entitled to infer from the evidence ganized crime, see H.J. Inc., 109 S.Ct. at 2903–04; that the Ruggiero organization was a long-term Ruggiero, 726 F.2d at 923, we are confident that criminal enterprise engaged in narcotics trafficking the statute provided Coiro with fair notice that his both before and after Salvatore's death; that Coiro contemplated conduct—bribery and money laun- was an active participant from at least as early as dering on behalf of the Ruggiero narcotics enter- February, 1982; and that the instances of Coiro's prise—fell within RICO's strictures, and thus the bribery and money laundering were calculated, con- statute is not unconstitutionally vague as applied to nected activities in furtherance of the enterprise, him. Accord United States v. Pungitore, 910 F.2d were ongoing prior to Salvatore's death, and contin- 1084, 1102–05 (3d Cir.1990) (rejecting vagueness ued and threatened to continue after his death. In challenge to RICO, noting that potential due pro- short, the evidence established that Coiro had be- cess problems cited by Justice Scalia are not come a full-fledged member of the enterprise, and present in organized crime cases); United States v. that his activities designed to prevent detection and Angiulo, 897 F.2d 1169, 1178–80 (1st Cir.), cert. prosecution of the organization's illegal activities denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d were part of a consistent pattern that was likely to 98 (1990) (same). The present indictment is not in- continue for the indefinite future, absent outside invalid simply because other marginal cases, real or tervention. imagined, criminal or civil, might involve facts that create undue uncertainty as to the application of CONCLUSION RICO's pattern requirement to a defendant's activit- We have examined Coiro's remaining argu- ies. See Ruggiero, 726 F.2d at 923; Pungitore, 910 ments and find them to be without merit. *1018 The F.2d at 1104; Angiulo, 897 F.2d at 1179. convictions are affirmed with the exception of Counts Seven and Eight. As to those, the case is re- [14] Finally, under H.J. Inc. and Indelicato, the manded to the district court with instructions to dis- trial evidence of Coiro's numerous activities in- miss either Count Seven or Eight. While normally volving bribery and money laundering on behalf of such instructions would include instructions to re- organized crime was more than ample to establish a sentence on the remaining counts, we decline to do

so here since the prison sentences on Counts Seven and Eight are concurrent and no fine was imposed on either count.

Judgment affirmed in part; remanded in part with instructions to vacate.

C.A.2 (N.Y.),1991. U.S. v. Coiro 922 F.2d 1008, 32 Fed. R. Evid. Serv. 296

END OF DOCUMENT