FRIENDLY, Circuit Judge:
These appeals from judgments of conviction in the District Court for the Southern
The evidence at trial showed the following:
In the early morning hours of November 18, 1980, surveillance agents of the FBI observed Ivkosic drop off his white van at Ivic's residence. Ivic then drove the van to Astoria, in the borough of Queens, where he picked up defendant Sovulj. Together Ivic and Sovulj drove to the intersection of 43rd St. and Broadway in the same borough, arriving there at 8:20 a.m. They parked on 43rd St., just north of Broadway, and replaced the left rear glass window of the van with a cardboard screen, leaving a two-inch opening at the top. Except for a five-minute interval during which the van circled the block, Ivic and Sovulj remained inside the parked but idling van until 8:54 a.m., peering through the aperture southwards down 43rd Street. The significance of the location was that one Joseph Badurina lived with his wife and children at 32-18 43rd St., just south of Broadway. Badurina was a prominent Croatian journalist and politician, the Secretary General of the Croatian National Congress, an umbrella organization for various Croatian groups, and editor of the Congress' publication, The Messenger. Badurina was a strong advocate of Croatian independence but a steadfast and vocal opponent of violence. He had previously published in The Messenger an open letter to the Croatian community from then U.S. Attorney Robert Fiske, Jr., along with an editorial endorsing it. These views had not endeared him to those in the Croatian
Badurina routinely walked his young daughter to school in the morning along 43rd Street, directly passing the spot where Ivic and Sovulj sat in the idling van on the morning of November 18. His regular practice was to leave his home between 8:25 and 8:30 a.m., drop off his daughter, and return alone by 9:15 a.m. Alerted by the FBI, Badurina took a different route on November 18 and thereafter did not venture outside his home for the next four weeks.
On the mornings of November 24 and 25 and December 10, Ivic and Sovulj or, on the latter date, Ivic alone, repeated essentially the same maneuver. After the November 24 visit FBI agents followed Ivic back to Dobbs Ferry. When he exited the van, he was seen carrying a slender object, two and one half to three feet long, wrapped in some sort of white covering. Ivic cradled the object in his arm as one would a rifle.
A subsequent search of Ivkosic's van, pursuant to warrant, yielded the cardboard screen cut to fit the rear view window. The cardboard box from which the screen had been cut was found in Cale's basement, as was a loaded Dutch 30.06 semi-automatic rifle mounted with a high-powered Mayflower scope. The rifle was inside a camouflage bag, which was in turn secreted beneath white painter's drop-cloths.
This and other evidence of a conspiracy to kill or otherwise injure Badurina, including statements by Sovulj to FBI agents denying ever being with Ivic in a white van anywhere in Queens, furnished the basis for Count 7 of the indictment, charging a conspiracy to violate Badurina's civil rights in violation of 18 U.S.C. § 241, and also furnished a possible predicate act for the RICO count (Count 1), charging a conspiracy under 18 U.S.C. § 1962(d) to violate 18 U.S.C. § 1962(c).
On November 28, 1980, Ivic and Cale talked about possible bombings. After discussing bomb construction techniques and the availability of dynamite, they identified prospective bombsites, describing one as "at the end of this avenue" and another as a "studio". It was agreed that Ivkosic would "show the way". Next day, immediately after Cale ordered him to obtain dynamite and "smash it however you want", Ivic drove Ivkosic's car to Bridgeport, Connecticut. There he made two stops, the first at the J & I Machine Shop and the second on Colony Street, near the residence of one Ante Caron, a J & I employee. On his return to his residence in Dobbs Ferry, Ivic removed a telephone company shopping bag from the car and carried it inside. Some forty-five minutes later he carried the same bag outside, placed it in Ivkosic's car, and drove to New York City where he joined Ivkosic in a Croatian demonstration outside the Yugoslav Consulate on Madison Avenue. With Ivkosic driving, the two men proceeded to the south end of Fifth Avenue. After circling Washington Square twice and then Union Square once in very heavy traffic, Ivkosic stopped the car in a crosswalk at the intersection of 16th St. and Union Square West. Ivic left the car briefly to inspect the premises at 19 Union Square West where the George Tomov Yugoslav Folk Dance Ensemble maintained a studio. Tomov had rented the studio for that evening to groups giving a party to celebrate Yugoslavia's Independence Day. The party had been widely advertised in the Yugoslav community and was expected to draw prominent Yugoslav officials, including the Yugoslav Ambassador to the UN and members of the Yugoslav Consulate. A search of Ivic's residence on December 12, 1980, pursuant to warrant, turned up the telephone company shopping bag which had been in the car when Ivic and Ivkosic stopped outside the dance studio on the afternoon of November 29. Inside the bag were assorted bomb paraphernalia and a lady's purse
The next bombing site selected was the Rudenjak Overseas Travel Service, a travel agency which specialized in booking trips to Yugoslavia. On the morning of December 4, Ivic surveilled the agency's office, located at 550 East 187th St. in the Bronx. Next afternoon he reported to Cale that the only effective way to destroy the agency was to leave the bomb in a garbage can outside the front display window. Cale concurred and authorized the operation, telling Ivic "I would do it . . . . There is no risk here." However, a few hours later that same day, Cale, Ivic, and Ivkosic discovered loose wires in Cale's basement. Fearing that they had been subject to electronic surveillance, they abandoned the plan. This and other evidence furnished the basis for Count 6, charging an attempt to damage and destroy, by means of explosives, a travel agency located in the Bronx, in violation of 18 U.S.C. §§ 844(i) and 2, and also provided another possible predicate for the RICO conspiracy count.
We need only add that the searches on December 12, 1980, of Cale's residence, Ivkosic's van, and Ivic's apartment yielded, in addition to the loaded Dutch 30.06 military rifle, the cardboard box and screen cut therefrom, and the telephone company bag which we have already mentioned, a supply of 30.06 and .38 calibre ammunition, a loaded revolver, and two copies of a pamphlet entitled "Headquarters of the Croatian Revolutionary Forces". The search of the Caron residence in Bridgeport on December 18, 1980, produced a haul which the Government characterizes as "an arsenal of weapons and ammunition"—including, in addition to the previously mentioned dynamite and blasting caps, a second Dutch military rifle virtually identical to that found in Cale's basement, a silencer, and several hundred rounds of ammunition. Also found were a copy of the same "Headquarters of the Croatian Revolutionary Forces" pamphlet and a manual detailing procedures for constructing terrorist weapons, including timebombs.
The Indictment, the Verdict and the Sentences
The indictment, the verdicts and the sentences so far as concerns the four appellants are set out in the following table:
Count Charge Defendant Verdict Sentence (Years) 1 Conspiracy to violate 18 Cale Guilty 15 U.S.C. § 1962(c): 18 Ivic Guilty 15 U.S.C. § 1962(d) Ivkosic Guilty 15 (RICO) Sovulj Guilty 10 2 Explosives conspiracy: Cale Guilty 5 18 U.S.C. §§ 371 and Ivic Guilty 5 844 Ivkosic Guilty 5 3 Transportation and Cale Guilty 5 receipt of explosives: 18 Ivic Guilty 5 U.S.C. §§ 844(d) & 2 Ivkosic Guilty 5 4 Attempt to use Cale Not guilty explosives (Washington Ivic Not guilty Square): 18 U.S.C. Ivkosic Not guilty §§ 844(i) & 2 5 Attempt to use Cale Guilty 10 explosives (Union Ivic Guilty 7½ Square studio): 18 Ivkosic Guilty 5 U.S.C. §§ 844(i) & 2 6 Attempt to use Cale Guilty 10 explosives (travel Ivic Guilty 7½ agency): 18 U.S.C. §§ 844(i) & 2 7 Conspiracy to violate Cale Guilty 10 civil rights (Badurina Ivic Guilty 10 murder plot): 18 U.S.C. Ivkosic Guilty 10 § 241 Sovulj Guilty 10
Cale: Sentences on counts 1 and 2 are consecutive, the total thereof to run concurrently with the sentences on counts 3, 5, 6, and 7, which are consecutive to one another. Total: 35 years.
Ivic: Same sentencing pattern. Total: 30 years.
Ivkosic: Same sentencing pattern. Total: 20 years.
Sovulj: Consecutive sentences on counts 1 and 7. Total: 20 years.
Legality of the Electronic Surveillance
As already stated, the extensive electronic surveillance carried out in this case was based on three district court orders dated November 20, November 25, and December 10, 1980. The first order, issued by Judge Owen of the Southern District and Judge Platt of the Eastern District of New York, authorized the installation and operation of interception devices inside Ivkosic's Chevrolet van and the living-dining room area of Cale's house at 31 North Eckar Street. This order named as subjects of the interception Cale, Ivic, and Sovulj, and "others as yet unknown", but did not name Ivkosic. The second order, issued by Judge Owen, named the same subjects and authorized the installation of an interception device in Cale's basement. The third order, likewise signed by Judge Owen, added Ivkosic as an interception subject, extended the authority to intercept conversations in Cale's living room and basement, and further authorized interception of wire communications on Cale's telephone.
Appellants mount a series of attacks on the legality of these orders. While we have little to add to the excellent opinion of Judge Pollack denying defendants' motion to suppress, 508 F.Supp. 1038 (S.D.N.Y.
Appellants' principal challenge is to the initial order of November 20. They argue that if this was defective, the results of interceptions authorized by the later orders must also be suppressed since these were obtained, in considerable measure, by evidence secured as a result of the interceptions authorized by the November 20 order. We find it unnecessary to pass upon this contention since we are satisfied with respect to the legality of the November 20 order.
The November 20 order was based on a 14-page affidavit by Kenneth J. Maxwell, a Special Agent of the FBI in New York. Appellants claim that this affidavit failed to make the showing of probable cause required by 18 U.S.C. § 2518(3)(a). They contend that the affidavit merely lumped together a long recitation of past bombings and murders, to which it did not connect them, with an account of an altogether "innocent" visit of Ivic and Sovulj to Badurina's neighborhood. Appellants have grotesquely mischaracterized the Maxwell affidavit and fundamentally mistaken the standards governing the determination of probable cause.
As said in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965), "[a]ffidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion". When so read, the Maxwell affidavit provided ample cause to believe that a conspiracy was afoot to kill or injure Joseph Badurina. Under the heading "Recent Surveillance" the affidavit treated in great detail the events witnessed by FBI agents on the morning of November 18, 1980. Specifically, it reported the following surveillance observations: that Ivic and Sovulj had driven a van to Badurina's street at the precise time of day when Badurina regularly walked his daughter to school; that they had positioned the van directly along the route ordinarily taken by Badurina and his daughter, replaced the van's rear window with a cardboard screen over which they peered towards Badurina's house, and remained there in the idling van for upwards of twenty-five minutes; and that on the evening before as well as the evening after the trip to Badurina's neighborhood, Ivic had visited Cale's residence on North Eckar Street.
These surveillance observations were given unmistakable color by the following allegations: that Cale was the New York chapter President and Sovulj an active member of OTPOR, a multinational Croatian nationalist organization other members of which had engaged in gun running, bombings, and assorted violent crimes; that Cale's residence at 31 North Eckar Street had served as a regular meeting place for OTPOR members in the past; that the van driven by Ivic and Sovulj was registered to Ivkosic, who resided at Cale's house; that Badurina had written articles opposing the use of violence by Croatian groups and was working to expel OTPOR from certain Croatian political organizations; and that there had been one previous attempt and numerous threats on Badurina's life for supposed disloyalty to the Croatian cause. None but the willfully naive could doubt that all this afforded probable cause to believe that Cale, Ivic and Sovulj were engaging in a conspiracy to take Badurina's life. The fact, if it be such, that the events of November 18 are susceptible of perfectly "innocent" explanation does not defeat probable cause. See United States v. Webb, 623 F.2d 758, 761 (2 Cir.1980).
We likewise reject appellants' claim that the requests for the interception orders were not properly authorized by the Department of Justice under 18 U.S.C. § 2516(1). As noted by Judge Pollack, 508 F.Supp. at 1042, appellants seem to have abandoned the contention that telephonic approval from the Assistant Attorney General in charge of the Criminal Division, subsequently confirmed in writing, was insufficient; in any event we would reject any such contention for the reasons stated and on the authorities cited by the district judge. Here the argument seems rather to
Further point is made that the November 20 and 25 intercept applications did not name Ivkosic, as allegedly was required by 18 U.S.C. § 2518(1)(b)(iv), which provides that an application shall include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." The Government's factual answer, that it did not have probable cause to believe that Ivkosic was involved in the criminal activities until he was observed driving a bomb around Manhattan on November 29, 1980, and that he was named in the next (and last) intercept application filed on December 10, 1980, seems convincing enough. Moreover, the Supreme Court has held that failure to comply with the identification requirement of § 2518(1)(b)(iv) does not, standing alone, invalidate an otherwise proper interception order, United States v. Donovan, 429 U.S. 413, 432-37, but see n. 23, 97 S.Ct. 658, 670-73, but see n. 23 (1977).
On the other issues raised with respect to the intercept orders—the alleged inadequacy of the showing that normal investigative procedures would not be successful, 18 U.S.C. § 2518(3)(c), and the alleged failure to satisfy the minimization requirement, 18 U.S.C. § 2518(5)—we are content to rest on the opinion of Judge Pollack, 508 F.Supp. at 1041-42.
The RICO Count
Count 1 of the indictment entitled "Racketeering Enterprise" contains five paragraphs. The first alleged that appellants, three other individuals, and others unknown to the grand jury constituted an "enterprise" as defined by 18 U.S.C. § 1961(4). Although the statute defines this simply as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity", the indictment went on to say "to wit, a group of individuals associated in fact which conspired to engage in various criminal activities including acts and threats involving murder and arson as chargeable under the laws of the State of New York." The second paragraph charged that "[i]t was the primary object of this criminal enterprise" that the defendants "would and did use terror, assassination, bombings, and violence in order to foster and promote their beliefs and in order to eradicate and injure persons whom they perceived as in opposition to their beliefs." The third paragraph charged that it was "the primary means of this criminal enterprise" that defendants and their associates "would and did receive, transport, possess, conceal, stockpile, construct, and utilize explosives, blasting caps, bombs, rifles, handguns, silencers, and ammunition." The fourth paragraph charged that the defendants, "being associated with the criminal enterprise described in Paragraphs One through
This count, and the judge's effort to enlighten the jury how to deal with it, have precipitated a large number of objections. Appellants contend that the indictment was defective in failing to give adequate notice of what predicate crimes the Government intended to rely upon to establish a "pattern of racketeering activity", as defined in 18 U.S.C. § 1961(1) and (5); that the Government failed to charge or prove the existence of a discrete ongoing organization existing apart from the alleged conspiracies to murder and place explosives, as allegedly required by United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); that the judge's instructions left the jury under the mistaken impression that proof of two of the 27 "steps" listed in the fifth paragraph of Count 1, many of them not crimes, would suffice as proof of the two acts of racketeering activity required by § 1961(5); and that in any event the consecutive sentences imposed on Cale, Ivic, and Ivkosic for Counts 1 and 2 and on Sovulj for Counts 1 and 7 constituted constitutionally impermissible double punishment. We find it unnecessary to consider these arguments since in our view the conduct charged in the indictment and proved at trial did not constitute an offense under § 1962(d) because, as the Government conceded at argument, it was neither claimed nor shown to have any mercenary motive.
It is a truism that as was said with respect to this very Act in United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524,
The Government's argument is simplicity itself. Section 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt," and § 1962(d) makes it unlawful for any person to conspire to violate subsections (a), (b), or (c) of § 1962. The group of Croatian nationalists to which defendants belonged fit the definition of "enterprise" in § 1961(4) inasmuch as they comprised a "group of individuals associated in fact although not a legal entity". A conspiracy to participate in the conduct of this enterprise's affairs through a "pattern of racketeering activity" would be established by showing, as to each defendant, that he agreed to further the enterprise by committing two of the State law crimes listed in § 1961(1)(A), in this case, murder and arson. That is all.
The Court has generally declined to adopt so simplistic an approach. As said by Justice Frankfurter in Griffiths v. Commissioner, 308 U.S. 355, 358, 60 S.Ct. 277, 278, 84 L.Ed. 319 (1939), "[l]egislative words are not inert, and derive vitality from the obvious purposes at which they are aimed . . . ". As put by Justice Jackson in SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 350-51, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943), "courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy." (footnote omitted) To such an inquiry we now turn.
Section 1962(c) was one of three substantive crimes added to Title 18 of the United States Code by Title IX of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 941. The first, § 1962(a), makes it unlawful to use funds derived from a pattern of racketeering, as defined in §§ 1961(1) and (5), or from the collection of unlawful debt, as defined in § 1961(6), to acquire an interest in or to establish or operate an enterprise engaged in or affecting interstate or foreign commerce. The second, § 1962(b), makes it unlawful to acquire or maintain an interest in or control of such an enterprise through a pattern of racketeering activity or through collection of unlawful debt. The third, § 1962(c), the provision which defendants here were charged with conspiring to violate, makes it unlawful to conduct or participate in such an enterprise's affairs through a pattern of racketeering activity or through collection of unlawful debt.
When the same word is used in the same section of an act more than once, and the meaning is clear in one place, it will be assumed to have the same meaning in other places. See United States v. Nunez, 573 F.2d 769, 771 (2 Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2828, 56 L.Ed.2d 774 (1978), and cases cited there. As it appears in subsections (a) and (b), the term "enterprise" quite clearly refers to the sort of entity in which funds can be invested and a property interest of some sort acquired, and hence the sort of entity which one joins to make money. Although perhaps somewhat wider in its reach than "business", an "enterprise", as used in these subsections, is evidently an organized profit-seeking venture. There was no charge or proof of that in this case. Defendants joined together not to make money but, as the indictment itself stated, see pp. 58-59, supra, to
Regard must be paid also to the title of the statute, "Racketeer Influenced and Corrupt Organizations". As said by Chief Justice Marshall in United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631, 4 L.Ed. 471 (1818), "[t]he title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature." See also United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805); Church of the Holy Trinity v. United States, 143 U.S. 457, 462-63, 12 S.Ct. 511, 513, 36 L.Ed. 226 (1892); Brotherhood of Railroad Trainmen v. Baltimore and Ohio, R.R., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 1391-92, 91 L.Ed. 1646 (1947). In the ordinary use of language no one would choose "corrupt" as an appropriate adjective to describe members of an organization striving for the independence of their native land even by the most abhorrent means but without any desire for personal gain. Dangerous, vicious, misguided, blinded with anger, even savage and crazed, yes, but corrupt, no. So too with "racketeer influenced". Webster's New International Dictionary (3d ed. 1963) defined a racketeer as "one who extorts money or advantages by threats of violence or by blackmail or by threatened or actual unlawful interference with business or employment" and a racket as "a fraudulent scheme, enterprise, or activity, . . . a system of obtaining money or other advantages illegally, fraudulently, or undeservedly . . . ." Definitions in other dictionaries that have been consulted are to the same effect. The words used by Congress have a familiar connotation to ordinary people as describing money-making activities about which they read in the newspaper every day. It would be stretching such words beyond permissible bounds to apply them to the terrorist activities of misguided patriots which, although likewise subject to condemnation, are worlds removed from that of such venal organizations as gambling, narcotics, or prostitution rings. "After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him." Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944).
Further light upon the meaning of § 1962(c) is cast by the statement of findings that prefaces the Organized Crime Control Act of 1970, 84 Stat. 922-23, which the Court quoted in Turkette, 452 U.S. at 588-89, 101 S.Ct. at 2531, and which we reproduce in the margin.
We have likewise been instructed that "another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body." Church of the Holy Trinity v. United States, supra, 143 U.S. at 463, 12 S.Ct. at 513. Title IX of the Organized Crime Control Act of 1970 (RICO) was the culmination of some two decades of Congressional concern about the infiltration of legitimate businesses by organized crime. See 115 Cong.Rec. 5872-90 (1969) (remarks of Sen. McClellan); Bradley, Racketeers, Congress, and the Courts: An Analysis of RICO, 65 Iowa L.Rev. 837, 838-45 (1980); Blakey and Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts, 53 Temp.L.Q. 1009, 1014-21 (1980). From the start Congressional concern centered on the problem of "black money", the purchase and operation of legitimate businesses with the proceeds of illegal endeavors. See S.Rep. No. 141, 82d Cong., 1st Sess. 33 (1951). A regulatory approach to this problem was recommended in 1967 by the Katzenbach Commission, see President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967), and was adopted shortly thereafter by two Senate bills. The first, S. 2048, 90th Cong., 1st Sess. § (8) (1967), cast as an amendment to the Sherman Act, prohibited the use in one business of unreported income from another. The second, S. 2049, 90th Cong., 1st Sess. § 2(1) (1967), prohibited the investment in any business enterprise affecting interstate commerce of income derived from certain enumerated criminal activities (gambling, narcotics, extortion and the like). Though it incorporated several of the remedial features of the antitrust laws, S. 2049 was framed as independent criminal legislation. After vicissitudes unnecessary here to trace in detail, see "The Criminal Activities Profits Act", S. 1623, 91st Cong., 1st Sess., 115 Cong.Rec. 6925 (1969); Hearings on Measures Relating to Organized Crime Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. 387 (1969); Bradley, Racketeers, Congress, and the Courts, supra, 65 Iowa L.Rev. at 841, a new bill, S. 1861, 91st Cong., 1st Sess., 115 Cong.Rec. 9512 (1969), was introduced by Senators McClellan and Hruska as a final replacement for S. 2048 and S. 2049 and was included as Title IX of the Organized Crime Control Act. The Senate Report on the Act stated the purpose of Title IX to be "the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce". S.Rep. No. 617, 91st Cong., 1st Sess. 76 (1969). The House Report and the Congressional floor statements characterized RICO's purpose in like terms. See e.g., H.R.Rep. No. 1549, 91st Cong., 2d Sess. 57 (1970), U.S.Code Cong. & Admin.News 1970 p. 4007, 4033 ("Section 1962 establishes a threefold prohibition aimed at stopping the infiltration of racketeers into legitimate organizations"); 116 Cong.Rec. 18939 ("Title IX is aimed at removing organized crime from our legitimate organizations") (remarks
In sum, RICO is the lineal descendant of a pair of 1967 Senate bills designed to apply antitrust-type measures to the problem of "black money". Although the bill ultimately enacted as RICO went somewhat beyond this initial conception, preventing and reversing the infiltration of legitimate businesses by organized crime elements remained its core purpose. Mere statement of RICO's origins, most particularly of the mischief it was meant to remedy, indicates that political terrorism, at least when unaccompanied by any financial motive, see note 6 supra, is beyond its contemplated reach.
While United States v. Turkette, supra, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246, held that the term "enterprise" as used in RICO encompasses illegitimate organizations, nothing there suggests that it reaches every such organization, even one whose animating long-run purpose and predicate crimes are political rather than pecuniary. Indeed, the rationale of Turkette points decidedly the other way. Acknowledging, in line with the legislative history we have summarized, that the "primary purpose of RICO is to cope with the infiltration of legitimate businesses", the Court reasoned that "applying the statute in accordance with its terms, so as to reach criminal enterprises, would seek to deal with the problem at its very source". Id. at 591, 101 S.Ct. at 2532. RICO's supporters, the Court said, "recognized that organized crime uses its primary sources of revenue and power—illegal gambling, loan sharking and illicit drug distribution—as a springboard into the sphere of legitimate enterprise". Id. Since RICO was intended not only to remedy but also to prevent the infiltration of legitimate businesses, the exclusion from its reach of such criminal enterprises as drug, prostitution, and gambling rings would, the Court concluded, "ignore [its] preventive function". Id. at 593, 101 S.Ct. at 2533.
Under the rationale of Turkette, then, RICO arguably applies to any organization, legitimate or not, whose activities generate monies which can serve as a "springboard into the sphere of legitimate enterprise". On the other hand, groups whose activities generate no such monies are impliedly excluded; application of RICO to them could not conceivably work, even indirectly, to prevent the infiltration of legitimate businesses by criminal elements. The terrorist activities of political groups such as the one here simply do not "give rise to . . . concerns about infiltration", id. at 593, 101 S.Ct. at 2533, at least where, as here, these activities are not designed to obtain, and do not in fact yield, any money whatsoever.
Other statements by the sponsors of RICO indicate its inapplicability to crimes having no economic motivation. Senator McClellan, the principal sponsor of the Organized Crime Control Act of 1970, made clear on several occasions that the purpose of Title IX is "economic" and that the only crimes included in § 1961(1) are those adapted to "commercial exploitation". See, e.g., 116 Cong.Rec. 18940 (1970); The Organized Crime Act (S. 30) or Its Critics: Which Threatens Civil Liberties?, 46 Notre Dame Law. 55, 161-62 (1970). Responding to objections of the Association of the Bar of the City of New York and the ACLU that the list of predicate racketeering acts in § 1961(1) included offenses often committed by persons not involved in organized crime, Senator McClellan stated:
116 Cong.Rec. 18940. See also 116 Cong. Rec. 18941 (§ 1962(b) and (c) "essentially proscribe acquisition or operation of a business through racketeering activity", emphasis supplied) (remarks of Sen. McClellan).
When Congress has desired to deal with terrorist activities, it has known how to do so. Destruction of and damage to aircraft and aircraft facilities, or motor vehicles and motor vehicle facilities, or disabling the crews of either, have long been federal crimes, 18 U.S.C. §§ 31-33, subject, if death should result, to a discretionary sentence of death or life imprisonment, § 34. See also 49 U.S.C. §§ 1472(i) (aircraft piracy) and (1) (carrying weapons, loaded firearms, and explosives aboard aircraft). Indeed, the Organized Crime Control Act itself contained one title, Title XI, extending federal criminal jurisdiction with respect to explosives which, as we have seen in this very case, see Counts 2 and 3, clearly comprehends the use of explosives in terrorist activities.
Indeed, application of RICO in the instant case seems to run counter to the Justice Department's own RICO Guidelines. These Guidelines, promulgated and made effective by the Criminal Division of the Justice Department on January 16, 1981, less than one month after this indictment was filed and some four months before the case went to trial, were intended to provide "detailed guidance" to federal prosecutors regarding "the use of RICO charges in criminal investigations and prosecutions". Memorandum of Philip Heymann, Assistant Attorney General, Criminal Division (January 16, 1981). The Preface to these Guidelines states that RICO is "most directly addressed" to the "infiltration of organized crime into the nation's economy". More important, Guideline VI directs that "[n]o RICO count of an indictment shall charge the enterprise as a group associated in fact, unless the association in fact has an ascertainable structure which exists for the purpose of maintaining operations directed toward an economic goal, that has an existence that can be defined apart from the commission of the predicate acts constituting the patterns of racketeering activity." (Emphasis supplied) The commentary following this guideline again expressly states that the enterprise must be directed "toward an economic goal". While we recognize that non-compliance with internal departmental guidelines is not, of itself, a ground of which defendants can complain, United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. Myers, 692 F.2d 823, 846 (2 Cir. 1982), these Guidelines nevertheless are important evidence of the understanding of the department of government charged with the administration of the statute. Cf. Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965); Blum v. Bacon, 457 U.S. 132, 142, 102 S.Ct. 2355, 2362, 72 L.Ed.2d 728 (1982).
Although this court has been hospitable to the Government's use of RICO, see, e.g., United States v. Altese, 542 F.2d 104 (1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977), (anticipating the holding of Turkette that RICO applies to illegitimate businesses); United States v. Angelilli, 660 F.2d 23 (1981), cert. denied, 445 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982) (New York City Civil Court held a RICO "enterprise"), we warned in United States v. Huber, 603 F.2d 387, 395-96 (2 Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 758 (1980), "that the potentially broad reach of RICO poses a danger of abuse where a prosecutor attempts to apply the statute to situations for which it was
Convictions under other counts
Invalidation of the convictions under Count 1 does not, of course, lead automatically to reversal of the convictions on the other counts. Cf. United States v. Losada, 674 F.2d 167, 170 (2 Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982) (dismissal of conspiracy count on double jeopardy grounds after close of Government's case or after verdict does not automatically require dismissal of convictions on substantive counts). Before addressing the specific objections made to these, we first consider whether the presence of the RICO count had any spillover effect sufficiently prejudicial to call for reversal.
We see no sufficient reason to think that it did. The evidence of defendants' acts was, to be sure, of the sort to arouse a jury, but substantially all the evidence adduced in support of the RICO count could and doubtless would have been presented under an indictment not containing that count. The elimination of the RICO count would not have significantly altered the trial strategy of the defense, see Pacelli v. United States, 588 F.2d 360, 366 (2 Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Still the jury was told that it could convict, and it in fact did convict, defendants of having conspired to engage in a pattern of "racketeering" activity—a term having a decidedly pejorative connotation. We have noted before that "[o]ne of the hazards of a RICO count is that when the Government is unable to sustain a conviction under this statute, it will have to face the claim that the prejudicial effect of tarring a defendant with the label of `racketeer' tainted the conviction on an otherwise valid count." United States v. Guiliano, 644 F.2d 85, 89 (2 Cir.1981). However, the Government's evidence here with respect to the ultimate facts on the other counts was so overwhelming that we do not believe any prejudice was caused; moreover, the jury's ability to overcome any prejudice or confusion resulting from inclusion of the RICO count is shown by their discriminating acquittal on Count 4.
The defendants' challenge to the sufficiency of the evidence to establish the assassination scheme charged in Count 7 does not warrant serious discussion. Although our summary of the evidence suffices to show this, it does not do justice to the wealth of detail adduced at trial. The surveillance observations, the intercepted conversations, the fruits of the searches, the false exculpatory statements by Sovulj, and Badurina's position in Croatian circles, not only justified but almost compelled the inference that, but for the FBI's warnings, defendants would have sought to take Badurina's life.
Defendants attack the convictions on the attempted bombings, Counts 5 and 6, on two related grounds. They claim, first, that the evidence was insufficient to prove an attempt as distinguished from mere preparation, and, second, that the judge's charge usurped the jury's function.
The Model Penal Code formulation was substantially adopted by the Fifth Circuit in a scholarly opinion of the late Judge Rives, United States v. Mandujano, 499 F.2d 370 (5 Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), and, shortly thereafter, by this court in United States v. Stallworth, 543 F.2d 1038 (2 Cir.1976), which has been followed, among other cases, in United States v. Jackson, 560 F.2d 112 (2 Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); United States v. Manley, 632 F.2d 978, 987-88 (2 Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); and United States v. Mowad, 641 F.2d 1067, 1073 (2 Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981). However, this is a classic example of a legal doctrine where although the principle is clear, its application is fraught with difficulty. We observed in United States v. Manley, supra, 632 F.2d at 988, that the determination whether particular conduct constitutes a "substantial step" is "so dependent on the particular facts of each case that, of necessity, there can be no litmus test to guide the reviewing courts." It is difficult as a conceptual matter to do better than the Model Penal Code's statement that conduct "shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor's criminal purpose", but this is not language easy of application by a jury or even by an appellate court. Relevant to our task is the immediately following sentence of the Model Penal Code, which we set forth in the margin.
The evidence with respect to the attempt to bomb the travel agency (Count 6) is much weaker. The evidence proved only that Cale and Ivic had discussed the bomb site and the best means of planting a bomb there, that they had acquired and had readily available the explosives needed to carry out the bombing, see Model Penal Code § 5.01(2)(e), that Ivic had reconnoitered the site, see id. § 5.01(2)(c), and that Cale had authorized the operation. In contrast to the Union Square dance studio episode, however, defendants never actually transported a bomb to the contemplated site, see id. § 5.01(2)(f). Although we share the view expressed by then Chief Judge Kaufman in United States v. Stallworth, supra, 543 F.2d at 1040, that society should be able "to punish malefactors who have unequivocally set out upon a criminal course without requiring law enforcement officers to delay until innocent bystanders are imperiled", see also G. Williams, Criminal Law—The General Part 632 (2d ed. 1961), we are concerned that attempt liability, with its accompanying heavy penalties, not be imposed for remote preparatory acts insufficiently corroborative of a firm criminal purpose. Certainly the defendants in Stallworth, as well as those in Jackson, Manley and Mowad, had gone a great deal further toward commission of the crime than Cale and Ivic had gone with respect to the travel agency. In Stallworth, for example, it was said that at the time the police intervened a bank robbery was already "in progress", supra, 543 F.2d at 1041; there was no room whatsoever for doubt that defendants there had "unequivocally set out upon a criminal course." The Government cites United States v. Brown, 604 F.2d 347, 350 (5 Cir. 1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 347 (1980), as being "remarkably on all fours with this case."
Defendants convicted on Counts 5 and 6 also challenge the judge's instructions. The principal claim concerns an instruction, given after the "substantial step" requirement was set out, that if the jury
We do not agree with defendants' assertion that these instructions amounted to the direction of a verdict once the jury had been convinced of the historical facts beyond a reasonable doubt. The judge told the jury that it "may" conclude, not that it must. He elaborated on this by saying:
Nevertheless we do not regard this form of instruction, for which the Government has cited and we have found no precedent, as desirable. Although it clearly is drawn from § 5.01(2) of the Model Penal Code, the Commentary indicates that this provision was intended for use by the judge not in charging the jury but in deciding whether to send a case to it. See Model Penal Code, § 5.01(2), Comment at 49 (Tent. Draft No. 10, 1960). Also, the instruction omitted to explain that reconnoitering and possession of explosives can constitute a "substantial step" only "if strongly corroborative of the actor's criminal purpose." Moreover, although the judge used all the appropriate words to prevent this, we think it far too likely that some jurors may have leapt to the conclusion that satisfaction beyond a reasonable doubt that a defendant had engaged in one of the enumerated acts relieved them of the harder task of determining beyond a reasonable doubt that his conduct had constituted "a substantial step in a course of conduct planned to culminate in his commission of the crime." Jurors should not be distracted from this central task. However, no objection was made at trial to this portion of the charge, and we surely cannot regard it as a plain error or defect affecting substantial rights, F.R. Cr.P. 52(b).
Nonetheless we cannot leave this subject without a further word. Under the sentencing pattern stated on pp. 55-56 supra, the sentences on Counts 5 and 6 had relatively little practical significance since they ran concurrently with the consecutive sentences on Counts 1 and 2. In light of our reversal of the convictions under Count 1, the sentences under Counts 5 and 6 become the sole bases for considerably lengthened terms of imprisonment. We have some doubt whether the district judge would have imposed such heavy sentences on Counts 5 and 6, more particularly the latter, if he had known that they would have this result. We thus vacate the sentences on these counts and remand to enable the district judge to reconsider them if he is so advised.
Although all of defendants' remaining contentions have been considered, the only one requiring any discussion is their attack on the charge on reasonable doubt. The judge began in approved fashion, see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 139, 99 L.Ed. 150 (1954); United States v. Magnano, 543 F.2d 431, 436-37 (2 Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100-01, 51 L.Ed.2d 536 (1977); 1 Devitt and Blackmar, Federal Jury Practice and Instructions, § 11.14 (3d ed. 1977), instructing the jury that "[a] reasonable doubt is such as would cause prudent people to hesitate in acts of importance to themselves." However, he then undertook to put it "a little differently", as follows:
Although creativity by district judges in enlightening juries is generally to be encouraged, a century's experience has confirmed the wisdom of the Supreme Court's observation that "[a]ttempts to explain the term `reasonable doubt' do not usually result in making it any clearer to the minds of the jury." Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1881). Chief Judge Coffin of the First Circuit has pointedly observed that "appellate courts have repeatedly cautioned that attempts to explain reasonable doubt seldom clarify the concept and may flirt with an impermissible reduction of the prosecution's burden of proof", Dunn v. Perrin, 570 F.2d 21, 23 (1 Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978), and has wisely warned against "personal variations" and needless departures from standard formulations, United States v. MacDonald, 455 F.2d 1259, 1263 (1 Cir.), cert. denied, 406 U.S. 962, 92 S.Ct. 2073, 32 L.Ed.2d 350 (1972). At worst such variations may be prejudicial to a defendant; at best they add needlessly to the work of appellate courts while being of no real benefit to the jury. We cannot see what is wrong with the instruction recommended in 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 11.14 (3d ed. 1977);
We have some fear that equating reasonable doubt with being "beset by uncertainty and unsure of your judgment" or having a "substantial reservation about your judgment", more particularly the former, may overstate the degree of uncertainty which reasonable doubt imports, putting it at some indeterminable point between the standard definition and the uncertainty that would defeat a plaintiff in a civil case.
The judgment of conviction under Count 1 (RICO) is reversed with instructions to dismiss the count on the ground that the conduct charged in the indictment and proved at trial did not constitute an offense under 18 U.S.C. § 1962; the sentences under Counts 5 and 6 are vacated and the cause is remanded to enable the district judge to consider resentencing; in all other respects the judgment is affirmed.
In addition, F.R.Cr.P. 52(b) provides that "plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." An appellate court may do this on its own motion. See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 plurality opinion of Justice Douglas, 118, concurring opinion of Justice Rutledge, (1945); Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (per curiam); Fisher v. United States, 328 U.S. 463, 467-68, 66 S.Ct. 1318, 1320-21, 90 L.Ed. 1382 (1946); United States v. Bacall, 443 F.2d 1050, 1063 (9 Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971); United States v. Adams, 634 F.2d 830, 836 (5 Cir.1981). See also United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). The failure of an indictment to charge an offense has been noticed under Rule 52(b) even where the defect had not been raised either below or on appeal. See, e.g., Chappell v. United States, 270 F.2d 274, 276 (9 Cir.1959); United States v. Clark, 412 F.2d 885, 887-88 (5 Cir.1969).