United States v. Weisman

624 F.2d 1118 (1980) United States Court of Appeals for the Second Circuit 1980-04-04

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)

Facts

  1. 2 Enterprise (§ 1961(4)): legal entity or association-in-fact satisfied proved
    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.
  2. 2 Enterprise (§ 1961(4)): legal entity or association-in-fact satisfied proved
    We reject this view as an overly restrictive interpretation on these facts of the meaning of “enterprise” within the context of that section.
  3. 2 Enterprise (§ 1961(4)): legal entity or association-in-fact satisfied proved
    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.
  4. 2 Enterprise (§ 1961(4)): legal entity or association-in-fact satisfied proved
    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.
  5. 5 Conduct or participate in the conduct of enterprise affairs (§ 1962(c) operation or management test) satisfied proved
    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.
  6. 5 Conduct or participate in the conduct of enterprise affairs (§ 1962(c) operation or management test) satisfied proved
    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.