Defendants appeal from their RICO and Hobbs Act convictions in the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge). Because the district court was not required to give a "multiple enterprise" instruction and because the evidence was sufficient to support appellants' convictions for aiding and abetting extortion,
Winter, Miner and Altimari, Circuit Judges.
Appellants Richard Stolfi and Frank Casalino, officers of Local 875 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 875"), were convicted of, inter alia, violating and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), and aiding and abetting extortion in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 2. Appellants argue that they were entitled to a "multiple enterprise" instruction with regard to the RICO charges and that the evidence on the Hobbs Act charge was legally insufficient. We affirm.
This case involves the criminal activities of officers of the Teamsters Union in their dealings with the Wedtech Corporation. After Wedtech's management learned of discussions of unionization among Wedtech employees, the company became fearful that the employees would select a union that would engage in arm's-length bargaining. A principal shareholder and officer of Wedtech had previously dealt with Local 875 in his capacity as the owner of a machine shop in the Bronx and was confident that he could develop a collusive relationship with it. Soon thereafter, in April 1977, Wedtech recognized Local 875 and signed a collective agreement that, inter alia, required Wedtech to make contributions to the union's welfare benefit fund, the Louis Hirsch Memorial Welfare Fund ("Fund").
As officers of Local 875, Stolfi and Casalino were responsible for negotiating with Wedtech on behalf of the Wedtech employees and the Fund. Local 875 and the Fund also shared offices, and the evidence showed that appellants had influence over the operation of the Fund. Wedtech realized the value of a good relationship with Stolfi and Casalino and for a period of years made monthly cash payments of $5,000 to them. In return, Wedtech enjoyed relative freedom from labor disputes and was even able to use non-union labor on some projects, causing a reduction in contributions to the Fund. In 1983, Wedtech also paid the appellants $25,000 for negotiating what Wedtech officers considered a "viable" collective bargaining agreement after the unionized Wedtech employees exhibited dissatisfaction with their less-than-aggressive bargaining representative. Finally, Wedtech was threatened by Local 17 of the Brotherhood of Carpenters and Joiners ("carpenters' local") with work stoppages and violence as a result of the use of non-union labor. Stolfi and Casalino made their good offices available to aid Wedtech in its difficulties with the carpenters, and Wedtech gave appellants $100,000 to pay off the carpenters' local, which thereafter ceased its threatening behavior. In addition, Stolfi embezzled money from the Fund through a false insurance claim and kickbacks from the purchase of real and fictitious dental equipment by a Fund dentist.
In 1988, Stolfi and Casalino were charged in an eleven-count indictment. The charges pertinent to this appeal were a RICO violation and RICO conspiracy in conjunction with the Wedtech payoffs. The RICO charges against Stolfi also included embezzlement and receipt of kick-backs from the Fund as predicate crimes. Also pertinent to the appeal was a Hobbs Act count involving the extorted $100,000 payoff that resolved the dispute with the carpenters' local.
RICO Section 1962(c) makes it unlawful for "any person employed by or associated with any enterprise" to conduct or participate in the conduct of the enterprise's affairs through "a pattern of racketeering activity." The indictment in this case alleged that the RICO "enterprise" was composed of Local 875 and the Fund, and the jury specifically found that the RICO enterprise had been established as alleged.
Appellants' sole challenge to their RICO convictions is that they were entitled to an instruction advising the jury that it should consider their contention that Local 875 and the Fund constituted two separate enterprises rather than the single enterprise charged in the indictment.*fn1 Judge Mukasey declined to offer that instruction and charged the jury:
If you find beyond a reasonable doubt that Teamsters Local 875 and the Welfare Fund did in fact exist during the period covered in Count One, and that they and any defendant you may find associated with them functioned as a continuing, ongoing organization, you may find that an enterprise existed and that the first element has been satisfied.
RICO Section 1961(4) defines an enterprise to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Appellants argue by analogy to cases involving multiple conspiracies, see United States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 795 (1980), that a "multiple enterprise" charge is required where more than one enterprise might be inferred from the evidence. The analogy, however, is incorrect.
The gravamen of a conspiracy charge is an agreement by two or more persons to commit a crime, and the government must of course prove the particular agreement charged in the indictment. Where the evidence might allow a jury to find multiple criminal conspiracies, the jury must be instructed that unless the particular conspiracy charged has been proven, the defendants must be acquitted, notwithstanding evidence of other conspiracies. Such an instruction is appropriate to guard against a jury's ...