Source: cases/18usc1962/f2d-624-1118-united-states-v-weisman.case
Case source: https://www.neochart.com/catalog/cases/f2d/volume_624/1118_01/index.html
the statutory language does not expressly require that the predicate acts of racketeering be specifically “related” to each other and we find no affirmative evidence in the legislative history from which we should infer such a requirement
Thus, the enterprise itself supplies a significant unifying link between the various predicate acts specified in section 1961(1) that may constitute a “pattern of racketeering activity.”
Accordingly, we find no error in the court’s refusal to adopt Weisman’s extended definition of “pattern” in charging the jury.
In light of the numerous similarities between the predicate acts of racketeering, we find appellant’s contention that a jury could find that the acts of racketeering activity he engaged in were sporadic and unrelated to be completely untenable.
we think that conspiracy can properly be charged as a predicate act of racketeering under RICO, at least when it involves any of the substantive offenses listed in section 1961(1)(D)
This language is certainly broad enough on its face to include conspiracies involving securities and bankruptcy fraud and drug related offenses.
Thus, even if the conspiracy counts were excluded, the jury verdict conclusively established a RICO violation and therefore any error in the inclusion of these counts in the RICO charge was harmless.
The district court concluded that the specific violations of securities laws charged elsewhere in the indictment could only constitute a single predicate act of racketeering because they arose “out of the same episode.”
Thus, even excluding the conspiracy counts as predicate acts, the convictions for securities fraud and bankruptcy fraud could also constitute ten separate predicate acts of racketeering, any two of which would be sufficient to sustain the conviction on the RICO count.
While that provision is apparently inapplicable to acts of racketeering occurring before the creation or acquisition of an enterprise, we believe that there was sufficient evidence to allow the jury to conclude that an enterprise was in existence well before the acts of securities fraud in 1973.
We reject this view as an overly restrictive interpretation on these facts of the meaning of “enterprise” within the context of that section.
The procurement of additional funds through the 1973 public offering was thus simply another, admittedly crucial, part of the Theatre’s continuing affairs, and the jury could therefore conclude that the fraud that occurred in connection with the public offering constituted an act of racketeering activity undertaken in the conduct of the Theatre’s affairs.
casedsl 1 case /f2d/624/1118-01 name United States v. Weisman cite 624 F.2d 1118 (1980) court United States Court of Appeals for the Second Circuit date 1980-04-04 url catalog/cases/f2d/volume_624/1118_01/index.html source ir/caselaw/f2d_624.jsonl sha1=dd0b6e587fe489185f8e1f178ed244257484231b chars=53958 law 18usc1962 (c) role applied posture criminal; appeal from jury conviction on a (c) count (plus securities-fraud, bankruptcy-fraud, conspiracy and obstruction counts); challenges to the RICO jury charge result claimant-won element pattern.relatedness : not-reached role rule-announced party Weisman variant relatedness/supplied-by-common-enterprise fact @1892..1997 [supports] | The Theatre, from its inception until its collapse, was operated through a wide ranging pattern of fraud. rule @9856..10094 | the statutory language does not expressly require that the predicate acts of racketeering be specifically “related” to each other and we find no affirmative evidence in the legislative history from which we should infer such a requirement rule @10752..10938 | Thus, the enterprise itself supplies a significant unifying link between the various predicate acts specified in section 1961(1) that may constitute a “pattern of racketeering activity.” held @12851..12977 | Accordingly, we find no error in the court’s refusal to adopt Weisman’s extended definition of “pattern” in charging the jury. gloss Pre-H.J. Inc. rule: no act-to-act relatedness is required; each act need only relate to the enterprise's affairs and fall within ten years. Decided as review of the jury charge (refusal to give the defendant's relatedness instruction upheld): a proposed sub-requirement is rejected, not found satisfied. element pattern.relatedness : satisfied [proved] scope alternative party Weisman theory act-to-act relatedness, if it were required variant relatedness/same-perpetrator-victims-goal-and-methods fact @50090..50212 [supports] | Weisman was a perpetrator of all of the acts of fraud and all were undertaken during the conduct of the Theatre’s affairs. fact @50213..50433 [supports] | Furthermore, the acts of stock fraud harmed legitimate investors in the Theatre and many of these same investors were again harmed when the later acts of bankruptcy fraud prevented the Theatre’s financial rehabilitation. held @50743..50987 | In light of the numerous similarities between the predicate acts of racketeering, we find appellant’s contention that a jury could find that the acts of racketeering activity he engaged in were sporadic and unrelated to be completely untenable. gloss Footnote alternative: even under an act-to-act test the 1973 stock fraud and 1976-77 bankruptcy fraud were related (same perpetrator, victims, goal, methods). [proved]: on the trial evidence no jury could have found the acts unrelated. element racketeering.conspiracy : satisfied [law] party Weisman count § 371 conspiracies to commit securities fraud and bankruptcy fraud variant conspiracy-as-predicate/any-offense-involving-1961-1-d fact @486..924 [supports] | Weisman was convicted of one count of operating the Theatre through a pattern of racketeering activity in violation of 18 U.S.C. §§ 1962(c) and 2, nine counts of fraud in the sale of securities in violation of 15 U.S.C. §§ 77q(a) and 77x and 18 U.S.C. § 2, nine counts of bankruptcy fraud in violation of 18 U.S.C. §§ 152 and 2, one count each of conspiracy to commit securities fraud and bankruptcy fraud in violation of 18 U.S.C. § 371, rule @14351..14533 | we think that conspiracy can properly be charged as a predicate act of racketeering under RICO, at least when it involves any of the substantive offenses listed in section 1961(1)(D) rule @14879..15023 | This language is certainly broad enough on its face to include conspiracies involving securities and bankruptcy fraud and drug related offenses. gloss §371 is not a listed predicate, but (1)(D)'s "any offense involving" fraud reaches conspiracies to commit (D) offenses. Pure question of law raised against the jury charge; the conspiracy convictions themselves were not attacked. element racketeering.conspiracy : not-satisfied [assumed] scope alternative party Weisman count § 371 conspiracies to commit securities fraud and bankruptcy fraud variant conspiracy-as-predicate/harmless-if-excluded-substantive-predicates-suffice held @17650..17849 | Thus, even if the conspiracy counts were excluded, the jury verdict conclusively established a RICO violation and therefore any error in the inclusion of these counts in the RICO charge was harmless. gloss "Even if" the conspiracies could not be predicates (assumed arguendo), the error in the charge was harmless: the substantive convictions alone gave ten predicate acts. element racketeering.securities-fraud : satisfied [proved] scope lower-court party Weisman count 1973 public offering (nine securities counts) variant securities-fraud/false-prospectus-and-secret-purchase-arrangements fact @2258..2567 [supports] | Weisman and his co-defendants filed with the Securities and Exchange Commission a prospectus that contained false and misleading statements and that failed to disclose material facts, including DePalma’s and Fusco’s role in the project and their beneficial ownership of a large portion of the Theatre’s stock. fact @2783..3037 [supports] | made secret arrangements through which various individuals agreed to purchase stock in the Theatre in return for promises of eventual cash payoffs, transfers of portions of Weis-man’s interest in the Theatre, and other forms of inducement or remuneration held @50990..51209 | The district court concluded that the specific violations of securities laws charged elsewhere in the indictment could only constitute a single predicate act of racketeering because they arose “out of the same episode.” gloss Nine securities counts from one offering = ONE predicate act (district court's charge, not disturbed). Sufficiency not contested by Weisman. gloss Jury verdict and district-court counting ruling, reported but not reviewed by the panel. element racketeering.bankruptcy-fraud : satisfied [proved] party Weisman variant bankruptcy-fraud/skimming-receipts-of-debtor-in-possession fact @3120..3346 [supports] | The newly constructed Theatre opened in March 1975, at which time Weisman and his confederates systematically began to skim and convert to their own use moneys received by the Theatre from ticket sales and various concessions. fact @4046..4163 [supports] | Nonetheless, Weisman, DePalma and Fusco, now joined by Cannatella, continued secretly to skim the Theatre’s receipts. held @16748..17016 | Thus, even excluding the conspiracy counts as predicate acts, the convictions for securities fraud and bankruptcy fraud could also constitute ten separate predicate acts of racketeering, any two of which would be sufficient to sustain the conviction on the RICO count. gloss Each of nine bankruptcy-fraud counts was a distinct episode and a separate predicate act. element enterprise : satisfied [proved] party Westchester Premier Theatre (the enterprise) count the 1973 stock offering, before the Theatre was built or operating variant legal-entity/corporation-before-business-operations-began fact @19060..19229 [cuts-against] | Weisman argues that because the Theatre was not constructed and in operation until 1975, it was not an “enterprise” in 1973 when the acts of securities fraud took place. fact @19875..20172 [supports] | For example, after its incorporation in 1971, the Theatre adopted bylaws, secured counsel and hired employees, established offices, sought a construction loan, entered negotiations with a real estate firm for a construction site, and began entering performance contracts with various entertainers. rule @19578..19874 | While that provision is apparently inapplicable to acts of racketeering occurring before the creation or acquisition of an enterprise, we believe that there was sufficient evidence to allow the jury to conclude that an enterprise was in existence well before the acts of securities fraud in 1973. held @19436..19577 | We reject this view as an overly restrictive interpretation on these facts of the meaning of “enterprise” within the context of that section. gloss A corporation in its organizational/financing phase is already an enterprise; (c) does not reach predicate acts committed before the enterprise exists. element conduct : satisfied [proved] party Weisman variant through-pattern/fraudulent-financing-of-own-company fact @1998..2257 [supports] | This pattern emerged in 1973, when Weisman, along with his partners and eventual co-defendants Gregory J. DePalma and Richard Fusco, sought through a fraudulent public offering of common stock to raise over two million dollars for construction of the Theatre. held @20173..20530 | The procurement of additional funds through the 1973 public offering was thus simply another, admittedly crucial, part of the Theatre’s continuing affairs, and the jury could therefore conclude that the fraud that occurred in connection with the public offering constituted an act of racketeering activity undertaken in the conduct of the Theatre’s affairs. gloss The nexus decided is "predicate act committed in the conduct of the enterprise's affairs" (raising its capital), not the later Reves operation/management question. element commerce : not-reached element association : not-reached misfit Pre-H.J. Inc. (1989) doctrine: the court holds that pattern needs NO relatedness between predicate acts, a rule later superseded. v1 now records that as a rule-announced block (and the footnote "related anyway" as `scope alternative`), but there is still no way to mark a rule as superseded, and no .case-side "element not required". misfit The enterprise/pattern RELATION again: the enterprise "supplies the unifying link" for the pattern, and the enterprise must EXIST at the time of each predicate act (temporal constraint between enterprise and racketeering). Recorded under enterprise and conduct; really a constraint among three elements. misfit Counting rule for predicate acts (nine securities counts from one offering = one act; nine bankruptcy counts = nine acts) is a rule about how racketeering acts aggregate into the >=2 requirement; it has no home (neither racketeering.* nor pattern). It is the held line of racketeering.securities-fraud, now `scope lower-court` because it is the district court's ruling as reported in a footnote. misfit Unchallenged jury findings: racketeering.bankruptcy-fraud is `satisfied [proved]` on merits scope because the panel itself relies on those convictions to sustain the RICO count, although their sufficiency was never attacked; [proved] does not distinguish "sufficiency upheld on review" (enterprise, conduct) from "verdict simply not challenged", and the line between that and `scope lower-court` (securities-fraud) is thin. misfit Co-defendant Cannatella was not charged under RICO; the RICO count matters to him only as the "unifying" count that justified Rule 8(b) joinder (pattern used as a joinder standard) -- a procedural use of the statute with no slot. Roughly two thirds of the opinion (confession, reverse immunity, severance, evidence) is unrelated to §1962; the tail of the text is a statutory appendix and footnotes.