STEVEN T. WOUGAMON, PETITIONER V. UNITED STATES OF AMERICA No. 88-5404 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit Brief for the United States in Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 6 at 1-40) is reported at 844 F.2d 1347. /1/ JURISDICTION The judgment of the court of appeals was entered on April 25, 1988. A petition for rehearing was denied on June 10, 1988 (Pet. App. 8). The petition for a writ of certiorari was filed on August 11, 1988. The petition is therefore out of time under Rule 20.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a defendant may be convicted of conspiracy to violate the RICO statute, 18 U.S.C. 1962(c), without proof that he agreed that he would personally commit two predicate offenses. 2. Whether the court of appeals, in answering the above question in the affirmative, violated the Ex Post Facto clause of the Constitution (Art. I, Section 9, cl. 3) or the doctrine of separation of powers. STATEMENT After a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. 1962(c), and of conspiring to do so, in violation of 18 U.S.C. 1962(d). He was also convicted on two counts of obstructing justice, in violation of 18 U.S.C. 1510. Petitioner was sentenced to consecutive terms of 18 years' imprisonment on each of the two RICO counts and to five years' imprisonment on each of the obstruction counts, for a total sentence of 46 years' imprisonment. The court of appeals affirmed petitioner's convictions on the RICO conspiracy count and on one obstruction of justice count; it reversed petitioner's convictions on the other obstruction count and on the substantive RICO count. Pet. App. 6 at 1-40. On resentencing after remand, petitioner was sentenced to consecutive terms of 18 years' imprisonment for RICO conspiracy and five years' imprisonment for obstruction. 1. The pertinent facts are set out in the opinion of the court of appeals (Pet. App. 6 at 5-10). The evidence disclosed an effort by codefendant Paul Leisure and his associates to dominate two labor unions and the criminal underworld in St. Louis, Missouri, through a series of murders and attempted murders. Thus, in 1968, Paul Leisure and his associates became affiliated with the Italian organized crime family headed by Anthony Giordano who, together with a Syrian organized crime family headed by James Michaels, Sr., controlled the hierarchy of Local 110 of the Laborers' International Union. By 1977, codefendant Anthony Leisure, Paul's brother, was designated assistant business manager of Local 110, with the understanding that he would exercise the power of the business manager and control the union. Codefendant Joe Broderick, a Leisure associate, also joined Local 110's hierarchy as Anthony Leisure's assistant. From 1978 until the first part of 1980, a power struggle took place over the leadership of Laborers' Local 110 and of Local 42, a second Laborers' Local in the St. Louis area. Anthony Leisure believed that he had not been given the powers over Local 110 that had been promised him. Tension grew when relatives of both Giordano and Michaels, Sr., were installed in Local 110 management positions. The threat to the Leisures' position in the union came to a head when Giordano and Michaels, Sr., insisted that Broderick be fired because they felt that the union's management positions should be held only by "family" members. At the same time, Giordano attempted to increase his leverage in Laborers' Local 42 through the sponsorship of an associate, John Spica, for membership in the union as a prelude to obtaining a management position. The appointment was resisted by Raymond Flynn, who at the time controlled Local 42 and was later to become an associate of Paul Leisure. In November 1979, following an argument between Spica and Flynn, Spica was murdered by a car bomb. After Giordano died of natural causes in June 1980, the Leisures decided to embark on a course of violence to protect their positions in Local 110. Accordingly, with Paul Leisure, Anthony Leisure, codefendants David Leisure (a nephew), Charles Loewe, and Broderick all playing various roles, Michaels, Sr., was killed by a car bomb on September 17, 1980. The Leisures were able to reclaim control of Local 110 in October 1980, and Raymond Flynn thereafter admitted Paul Leisure to the management of Local 42 in order to "call the shots." The associates of Michaels, Sr., subsequently retaliated: on August 11, 1981, Paul Leisure was seriously injured by a car bomb. That incident provoked efforts at reprisal by members of the Leisure group, who, during the next two months, made various attempts to murder their rivals. Those efforts culminated on October 16, 1981, when "Sonny" Faheen, who was implicated in the attack on Paul Leisure, was killed by a bomb placed in his car by Michael Kornhardt, a hit man employed by the Leisures. Kornhardt was arrested just after the Faheen murder, and another member of the murder plot subsequently agreed to testify against Kornhardt after being arrested on unrelated state charges. Fearing that Kornhardt might similarly cooperate and implicate various members of the Leisure group, Paul Leisure ordered Kornhardt's murder. Petitioner volunteered for the job and was selected to participate in the killing. On the night of July 30, 1982, petitioner, codefendant Robert Carbaugh, and Kornhardt drove to a rural area for the ostensible purpose of participating in a robbery. With petitioner's assistance, Carbaugh twice shot Kornhardt in the head and disposed of his body in a roadside ditch. As compensation for the murder, Paul Leisure had both petitioner and Carbaugh enrolled as members of Local 42. /2/ In spite of the silencing of Kornhardt, federal investigators uncovered additional information that implicated the Leisures. In particular, on November 9, 1982, federal law enforcement officials contacted petitioner's brother-in-law, Innes Anderson, who had from time to time been informed of the details of the Leisure group's criminal activities, including accounts of Kornhardt's murder. Anderson agreed to cooperate with the investigation, although he denied doing so when confronted by petitioner later that same day. Petitioner told Anderson that if he had "snitched," he was "dead," and petitioner said that he could not protect Anderson or his family from the Leisures. Anderson and his family left St. Louis under government protection the following day, and Anderson did not return until the day of his testimony at trial. /3/ 2. The court of appeals affirmed in part and reversed in part. The court found that there was ample evidence to show the existence of a RICO enterprise, because "(t)he Leisure group acted out of a common purpose to dominate local labor unions, profit economically from this domination, and murder opponents of their efforts to the extent necessary" and because "(t)he structure and personnel of the Leisure group was continuous and consistent throughout the entire period of racketeering activity" (Pet. App. 6 at 31). The court concluded, however, that there was a defect in one of the two allegations of predicate crimes and that the evidence was accordingly insufficient to establish petitioner's commission of two predicate acts (id. at 38-39). In particular, petitioner was charged with having committed two predicate acts: the obstructions of justice that involved the murder of Kornhardt and the threats to prospective witness Anderson. With respect to the former, the court held that "(t)he evidence was more than sufficient" to show that Kornhardt was killed in order to prevent his communication of information to federal officials (Pet. App. 6 at 32-33). With respect to the Anderson obstruction, however, the court held that, because of an impermissible amendment of the indictment, "(petitioner) was convicted of an offense for which it was impossible to know that the grand jury would have indicted him" (id. at 38). /4/ Accordingly, in addition to reversing petitioner's conviction on the obstruction count relating to Anderson, the court reversed petitioner's conviction on the substantive RICO count, because "the amended indictment failed to allege two acts of racketeering activity" (Pet. App. 6 at 39). That ruling, however, did not affect petitioner's separate conviction for conspiracy to violate the RICO statute, which the court of appeals affirmed. The court stated (id. at 39-40 (footnotes omitted)): "(Petitioner's) RICO conspiracy conviction must be upheld * * *, for this court has recently joined the majority of circuits that hold that a conviction for RICO conspiracy, 'requires only that each defendant agree to join the conspiracy,' not that each agree to commit at least two acts of racketeering activity. United States v. Kragness, 830 F.2d 842, 860 (8th Cir. 1987). There is ample evidence that petitioner agreed to join the Leisure RICO enterprise with the knowledge that other members of the enterprise were to commit at least two acts of racketeering activity." ARGUMENT Petitioner in this Court does not challenge his conviction on the obstruction of justice charge involving Kornhardt. He challenges only his RICO conspiracy conviction, arguing on both statutory and constitutional grounds that the court of appeals erred in ruling that the government was not required to prove that petitioner agreed that he would personally commit two predicate acts of racketeering. The court of appeals' ruling is correct and does not warrant further review by this Court. 1. a. On the basic statutory question, the court of appeals correctly held (Pet. App. 6 at 39-40) that petitioner did not have to agree to commit two predicate acts personally in order to be convicted of RICO conspiracy, in violation of 18 U.S.C. 1962(d). Under the RICO statute, a "pattern of racketeering activity" consists of two or more acts of racketeering activity. 18 U.S.C. 1961(5). A substantive RICO offense under 18 U.S.C. 1962(c) requires the government to prove that the defendant, who was employed by or associated with an "enterprise," conducted or participated in the conduct of the affairs of the enterprise through a pattern of racketeering activity. In turn, the RICO conspiracy offense under 18 U.S.C. 1962(d) requires the government to prove that the defendant conspired to violate one of the substantive RICO provisions. The crime of conspiracy requires proof of an agreement whose objective is the commission of one or more unlawful acts. Braverman v. United States, 317 U.S. 49, 53 (1942). There is no requirement that each conspirator agree that he will himself perform the illegal act or acts that constitute the conspiracy's objective. On the contrary, a conspirator may be convicted on a showing that he agreed to participate in the conspiracy with knowledge of the essential objectives of the conspiracy. United States v. Carter, 721 F.2d 1514, 1528 n. 21 (11th Cir.), cert. denied, 469 U.S. 819 (1984). In accordance with those basic principles of conspiracy law, the RICO conspiracy statute simply requires that the defendant agree to participate in an enterprise, understanding and agreeing that the enterprise's affairs will be conducted through the commission of at least two predicate criminal acts. There is no evidence that, when it enacted the conspiracy provision of the RICO statute, Congress intended to depart from the general principles of conspiracy law. Indeed, far from imposing the additional restrictions on the prosecution that petitioner urges, Congress mandated that the RICO statute be liberally construed to achieve its objective of combating organized crime. Russello v. United States, 464 U.S. 16 (1983); United States v. Turkette, 452 U.S. 576, 588-589 (1981). In this case, of course, even aside from petitioner's own acts, there is no doubt, as the court of appeals held (Pet. App. 6 at 39-40), that the jury found that petitioner joined the enterprise understanding that it would be conducted through numerous criminal acts. b. Although petitioner's reading of the RICO conspiracy statute is incorrect, petitioner correctly notes (Pet. 26-27) that there is at present an intercircuit conflict on the elements of RICO conspiracy. That conflict, however, may well be resolved without the need for this Court's intervention. This Court has repeatedly denied certiorari in cases raising the identical issue in the past four years. See Finestone v. United States, No. 87-5298, cert. denied (Nov. 9, 1987); Stewart v. United States, No. 86-5917, cert. denied (Mar. 9, 1987); Messino v. United States, cert. denied, 479 U.S. 939 (1986); Neapolitan v. United States, cert. denied, 479 U.S. 940 (1986)); Hlavach v. United States, cert. denied, 479 U.S. 939 (1986); Covello v. United States, cert. denied, 479 U.S. 939 (1986); Turner v. United States, cert. denied, 479 U.S. 939 (1986); Adams v. United States, cert. denied, 474 U.S. 971 (1985); Tillie v. United States, cert. denied, 469 U.S. 845 (1984); Carter v. United States, cert. denied, 469 U.S. 819 (1984). For the reasons we explained in our oppositions to the petitions for certiorari in those cases, we believe that review of the issue continues to be unwarranted. Two circuits early stated that, for conviction of RICO conspiracy, a defendant must have agreed to participate in the conduct of the enterprise through his own commission of two or more predicate acts of racketeering. United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, 469 U.S. 831 (1984); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981), cert. denied, 460 U.S. 1011 (1983). Six circuits have held otherwise. United States v. Kragness, 830 F.2d 842, 860 (8th Cir. 1987); United States v. Neapolitan, 791 F.2d 489 (7th Cir.), cert. denied, 479 U.S. 940 (1986); United States v. Joseph, 781 F.2d 549, 554 (6th Cir. 1986); United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 971 (1985); United States v. Tillie, 729 F.2d 615, 619 (9th Cir.), cert. denied, 469 U.S. 845 (1984); United States v. Carter, 721 F.2d at 1529. Those cases, however, do not present as irreconcilable a conflict as petitioner suggests. Although Winter contains language contrary to the ruling in the majority of circuits, the issue petitioner raises here was not raised in the Winter case. The jury in Winter was in fact instructed that conviction of RICO conspiracy required an agreement to commit two predicate acts personally. The defendants argued on appeal that RICO conspiracy requires proof that the defendant actually committed two predicate acts of racketeering. The First Circuit rejected that argument. The court's broader statement that a RICO conspiracy requires that the defendant agree to commit two or more predicate acts personally is therefore dictum and would not be binding in that court in a case squarely presenting the issue. The Second Circuit in Ruggiero did reverse a conviction for RICO conspiracy, but the court's analysis of the present issue was not necessary to its decision. The indictment had charged defendant Tomasulo with RICO conspiracy based on two predicate acts. One of the two was held to be legally insufficient on appeal; the court therefore concluded that the alleged predicate act did not qualify as an act of racketeering at all. For that reason, Tomasulo's conviction was invalid without regard to whether he had agreed to commit that act himself or had simply agreed that the act would be committed by one of his co-conspirators. In either case, the agreement that he was alleged to have entered into included only one act of racketeering, and it was thus not a violation of 18 U.S.C. 1962(d). In any event, Ruggiero and Winter were decided without the benefit of the analysis in United States v. Carter, supra, which all the courts of appeals that have since passed on the issue have endorsed. Indeed, the Ruggiero court stated that it considered its construction of Section 1962(d) to be required by "prevailing case law" (726 F.2d at 921). Since that time, every court that has considered the issue has ruled contrary to the Second Circuit, and the Second Circuit has not had an occasion to reconsider Ruggiero in light of the repeated rejection of that ruling by other circuits. Because of the subsequent developments, the Second Circuit may well reconsider its ruling in Ruggiero when it is presented with another opportunity to review the issue. 2. Petitioner's argument (Pet. 12-18) that the court of appeals' construction of the RICO conspiracy statute violates the constitutional prohibition against ex post facto laws is plainly meritless. As the language of the Ex Post Facto clause itself makes clear (U.S. Const. Art. I, Section 9, cl. 3 ("No * * * ex post facto Law shall be passed"), the clause "is a limitation upon the powers of the Legislature * * *, and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191 (1977); see Weaver v. Graham, 450 U.S. 24, 28-29 (1981). Hence, the court of appeals' construction of the RICO statute, though it may be challenged as incorrect as statutory construction, may not be challenged as an ex post facto law. Of course, the court of appeals in this case did not apply the RICO statute "to events occurring before its enactment" (Weaver v. Graham, 450 U.S. at 29; see also Miller v. Florida, No. 86-5344 (June 9, 1987), slip op. 6-7), as RICO became law in 1970 (Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922) and this case involved events no earlier than 1979. /5/ Equally without merit is petitioner's second constitutional claim (Pet. 19-26) -- that the court's alleged misconstruction of the RICO conspiracy statute violated the principles of separation of powers. Even by its own terms, this claim fails because, as we have shown (page 7, supra), the court of appeals' construction of the RICO conspiracy statute was in fact correct. In any event, a court does not violate the constitutional separation of powers whenever it misconstrues a statute: mere error does not mean that the court has departed from its proper role in deciding statutory cases, a role that encompasses the duty to "say what the law is" and to "expound and interpret" it (Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney OCTOBER 1988 /1/ "Pet. App. n at x-y" refers to pages x through y of appendix n to the petition for a certiorari. "Pet. App. n" refers to appendix n. /2/ Petitioner's involvement in the murder of Kornhardt was charged as an obstruction of justice (in the obstruction count on which petitioner's conviction was affirmed) and as a predicate act in the substantive RICO count. /3/ Petitioner's threats to Anderson were charged as an obstruction of justice (in the count on which petitioner's conviction was reversed) and as a predicate act in the substantive RICO count. /4/ Petitioner was charged with violating 18 U.S.C. 1510 by "endeavoring" to obstruct justice "by means of intimidating and threats of force" in his dealing with witness Anderson on November 9, 1982. The quoted language, however, had been removed from Section 1510's scope in statutory amendments that became effective on October 12, 1982. Because those amendments made it a crime under 18 U.S.C. 1512 to "attempt" to obstruct justice by the use of "intimidation or * * * threats," the district court struck the references to Section 1510 from the indictment and instructed the jury on the elements of the offense contained in Section 1512. The court of appeals found that that change amounted to an impermissible amendment because the two Sections contained different mens rea requirements and because the operative terms, "endeavor" and "attempt," have different connotations. Pet. App. 6 at 38. /5/ Although petitioner has not raised a separate due process claim of lack of fair warning, he suggests (Pet. 12-13, 15-16) that he lacked fair warning of the court of appeals' construction of the RICO conspiracy statute, in violation of Bouie v. City of Columbia, 370 U.S. 347, 353-354 (1964). That claim, too, is meritless. Contrary to petitioner's suggestion, the Eighth Circuit did not reverse a previously announced position when it ruled in United States v. Kragness, 830 F.2d 842 (1987), that a conviction of RICO conspiracy does not require proof that the defendant agreed that he would personally commit two predicate offenses. The issue was one of first impression for the Eighth Circuit in Kragness. Moreover, as we have shown (see page 7, supra), the court of appeals' construction of the RICO conspiracy statute comports with settled principles of conspiracy law, which antedated both the enactment of the RICO conspiracy statute and petitioner's participation in the charged conspiracy, and that construction is in accord with the view of the large majority of circuits. Because the court of appeals merely resolved a not- yet-settled question of law in a predictable manner, its construction of the statute did not deprive petitioner of fair warning that his conspiratorial activities were prohibited. See, e.g., United States v. Walsh, 770 F.2d 1490, 1492-1493 (9th Cir. 1985); United States v. Scully, 769 F.2d 60, 65 (2d Cir. 1985); Forman v. Wolf, 590 F.2d 283 (9th Cir. 1978), cert. denied, 442 U.S. 918 (1979).