No. Cianci v. United States - Opposition

No. 05-43

In the Supreme Court of the United States

VINCENT A. CIANCI, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether a governmental entity may constitute a member of an association-in-fact "enterprise" under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961(4), if the entity's activities were controlled by individuals who had an unlawful purpose and who manipulated the entity's activities for that pur pose.

2. Whether petitioner's tape-recorded statements to a government agent were admissible under the "state of mind" exception to the hearsay rule in Federal Rule of Evidence 803(3).

In the Supreme Court of the United States

No. 05-43

VINCENT A. CIANCI, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-75) is reported at 378 F.3d 71. The memorandum and order of the district court denying petitioner's motion for a judgment of acquittal is reported at 210 F. Supp. 2d 71.

JURISDICTION

The opinion of the court of appeals was issued on August 10, 2004. A petition for rehearing was denied on October 8, 2004 (Pet. App. 76-77). The judgment of the court of appeals (id. at 78-83) was entered on April 5, 2005. The petition for a writ of certiorari was filed on July 1, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the District of Rhode Island, petitioner was convicted of one count of racketeering conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d). He was sentenced to 64 months of imprisonment, to be followed by two years of supervised release, and was ordered to forfeit $250,000 in a campaign fund. The court of ap peals affirmed petitioner's conviction. Pet. App. 1-75.1

1. Petitioner served as mayor of Providence, Rhode Island, from 1974 to 1984 and from 1991 to 2002. Co- defendant Frank E. Corrente served as Providence's director of administration (and was effectively peti tioner's second in command); co-defendant Richard E. Autiello served as a member of the City Towing Associa tion. From 1991 to 1999, petitioner and his co-defen dants engaged in a scheme to use petitioner's political position to sell municipal favors. Specifically, the gov ernment presented evidence at trial that petitioner and his co-defendants awarded (or caused to be awarded) municipal jobs, city contracts, tax abatements, and building-code variances in return for cash (including contributions to petitioner's campaign fund) and other items of value. Petitioner or Corrente would typically call or meet with city officials to ensure that the desired actions were taken; Corrente was responsible for solicit ing and collecting payments. Pet. App. 1, 7, 19, 25; Gov't C.A. Br. 4-48.

2. Petitioner and his co-defendants were charged with various racketeering, bribery, and extortion of fenses. As relevant here, all three defendants were charged with one count of racketeering conspiracy, in violation of 18 U.S.C. 1962(d). That section of RICO makes it unlawful to conspire to violate any of RICO's substantive provisions, including 18 U.S.C. 1962(c), which in turn makes it unlawful "for any person em ployed by or associated with any enterprise engaged in [interstate commerce] to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." RICO de fines an "enterprise" to "include[] any individual, part nership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. 1961(4). In this case, the superseding indictment alleged that the rele vant "enterprise" consisted of the following persons as sociated in fact: petitioner; Corrente; Autiello; the City of Providence (including, but not limited to, various specified offices and agencies); Friends of Cianci, peti tioner's political organization; and others known and unknown to the grand jury. Pet. App. 6.2

One of the evidentiary issues at trial involved the admissibility of tape-recorded statements by petitioner to an undercover government agent. In the recorded conversation, the agent posed as an air-conditioning salesman who was seeking a city contract. Petitioner referred him to a local official. Although the subject of corruption had not been broached, petitioner told the agent that the official was "honest as the day is long." Petitioner then stated: "No one will ask you for a thing. If anybody does, you pick up the phone [and] call me. I'll cut his * * * * off and [have him] arrested." Later in the conversation, petitioner, in introducing the agent to a third party, said that the agent was "probably" work ing for the Federal Bureau of Investigation. C.A. App. 378, 382.

At trial, petitioner sought admission of his tape-re corded statements under the "state of mind" exception to the hearsay rule in Federal Rule of Evidence 803(3), which (with an exception not relevant here) allows the admission of "[a] statement of the declarant's then exist ing state of mind, emotion, sensation, or physical condi tion (such as intent, plan, motive, design, mental feeling, pain, and bodily health)." The district court declined to admit petitioner's statements, on the ground that they were not relevant. The court reasoned that "the conver sation * * * does not relate to any predicate act or to any specific matter with respect to which the Govern ment has presented any evidence." Instead, the court noted that "the import of the statement is to show what [petitioner] did or didn't do on other occasions with re spect to unrelated matters." Pet. App. 60; 6/6/02 Tr. 106-110.

Petitioner was convicted on the racketeering-con spiracy count, but was acquitted on the other counts against him. Corrente and Autiello were convicted both on the racketeering-conspiracy count and on various other counts. Pet. App. 2. The district court denied the defendants' motion for a judgment of acquittal on the racketeering-conspiracy count. 210 F. Supp. 2d 71.

3. The court of appeals affirmed the convictions. Pet. App. 1-75.

a. As relevant here, the court of appeals rejected the defendants' contention that the City of Providence could not constitute a member of a RICO association-in-fact "enterprise" (or, in the alternative, that the government had failed to prove that the City of Providence was in fact a member of the alleged enterprise). Pet. App. 10- 24. At the outset, the court explained that the mere fact that persons jointly engaged in conduct that amounted to a "pattern of racketeering activity" does not compel the conclusion that the persons constituted a RICO association-in-fact "enterprise." Id. at 11. The court re cognized that other courts had held that an association- in-fact enterprise must have an "ascertainable struc ture" distinct from that inherent in the conduct of the underlying racketeering activity. Id. at 11-12. The court of appeals noted, however, that it had previously refused to adopt an "ascertainable structure" require ment, but had instead held, consistent with this Court's decision in United States v. Turkette, 452 U.S. 576 (1981), that the members of an association-in-fact enter prise must "function as an ongoing unit" and "constitute an ongoing organization," and that it was "important" that the members "share a common purpose." Pet. App. 12 (citations omitted).

The court of appeals proceeded to reject the defen dants' argument that a governmental entity could not constitute a member of an association-in-fact enterprise because such an entity could not act with an unlawful intent. Pet. App. 12-13. The court noted that "it is un controversial that corporate entities, including munici pal and county ones, can be included within association- in-fact RICO enterprises," and that a legitimate entity could constitute a member of a RICO enterprise. Id. at 13. The court reasoned that, while it was "obvious" that a corporate (or governmental) entity "does not have a mind of its own for purposes of RICO," id. at 15, it could have an imputed unlawful purpose if "those who control the entit[y] share the purposes of the enterprise," id. at 13. The court further reasoned that "[a] RICO enter prise animated by an illicit common purpose can be com prised of an association-in-fact of municipal entities and human members when the latter exploits the former to carry out that purpose." Id. at 13-14.

The court of appeals then considered at length, and ultimately rejected, the defendants' contention that "the evidence introduced at trial in support of the alleged schemes set forth above * * * was insufficient to ground a finding that the schemes were conducted through the specific entity alleged in the indictment to have constituted a RICO enterprise." Pet. App. 15-24. The court noted that the jury was correctly instructed on the requirements for a RICO enterprise, id. at 16-17, and agreed with the government that "the jury's enter prise finding is sustainable because there was sufficient evidence that [petitioner] and Corrente exercised sub stantial control over the municipal entities named as members of the enterprise," id. at 17. While emphasiz ing that "[b]eing named in the enterprise does not make the City itself criminally or civilly liable under RICO," the court noted that "[i]t bears repeating that the RICO statute defines 'enterprise' broadly." Id. at 23.

b. The court of appeals also rejected petitioner's contention that his tape-recorded statements were ad missible under the "state of mind" exception to the hear say rule. Pet. App. 59-63. The court reasoned that "[pe titioner's] statement was not admissible in order to show what [petitioner] might have done or not done on other occasions not proximate to the time the statement was uttered." Id. at 61. Instead, "[t]he only purpose for which the statement could have been admitted would have been to establish [petitioner's] state of mind at the time the statement was made." Ibid. "That the state ment was made at one point during the time of the charged conspiracy cannot be sufficient to mandate its admission," the court continued, "especially where the latter part of the statement-'He's probably an FBI agent'-places doubt on what [petitioner] claims is the probative value and relevance of the statement as a whole." Id. at 61-62. The court reasoned that "[w]hether [petitioner's] statement is 'forward-looking' or refers to past acts and events is unclear from the statement itself," and ultimately determined that "it was within the district court's discretion to conclude that the statement, at least in part, applied to past acts of [peti tioner's] administration and were to a large extent 'self- serving' attempts to cover tracks already made." Id. at 62.3

c. Judge Howard concurred in part and dissented in part. Pet. App. 64-75. He noted that he was "not per suaded" that the majority had "convincingly fended off" the defendants' argument that a municipal entity cannot be regarded as a member of an association-in-fact enter prise for RICO purposes. Id. at 64-65. Assuming, how ever, that it could-and that the correct test for deter mining membership was whether individuals with an unlawful purpose exercised control over the municipal entity at issue-Judge Howard determined that the gov ernment had failed to prove that petitioner and Corrente sufficiently controlled the activities of the named municipal entities that their unlawful purpose could be imputed to those entities. Id. at 68-75. He rea soned that evidence that a municipal entity merely "ac ceded to a mobster's request (but without knowledge of the purposes underlining the request)" was insufficient to meet that requirement. Id. at 71. Because Judge Howard would have reversed petitioner's RICO convic tion on that ground, he did not reach the issue whether petitioner's tape-recorded statements were admissible. Id. at 75.

ARGUMENT

1. Petitioner's contention (Pet. 11-20) that the City of Providence could not constitute a member of a RICO association-in-fact "enterprise" does not warrant further review.

a. RICO 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." 18 U.S.C. 1961(4) (emphasis added). Although the statute lists only "any union or group of individuals" as an example of an association-in-fact enterprise, the courts of appeals have consistently held that the membership of an association-in-fact enterprise is not limited to individu als, but may extend to other legal entities. See, e.g., United States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied, 511 U.S. 1076 and 513 U.S. 812 (1994); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir. 1993); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 995 n.7 (8th Cir. 1989). In so holding, those courts have reasoned that Congress intended the list of "enterprises" in 18 U.S.C. 1961(4) to be illustrative, rather than exhaustive, as reflected by the statute's use of the term "includes." See, e.g., United States v. Mas ters, 924 F.2d 1362, 1366 (7th Cir.), cert. denied, 500 U.S. 919 and 502 U.S. 823 (1991); United States v. Perlholtz, 842 F.2d 343, 353 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); cf. United States v. Turkette, 452 U.S. 576, 580 (1981) (noting that "[t]here is no restriction upon the associations embraced by the definition").

There is no basis for excluding governmental bodies from the legal entities that may be members of an association-in-fact conspiracy under RICO. Cf. Pet. 3 (contending that, because this case involves a govern mental entity, "[t]he RICO issue [i.e., whether entities that do not share the illicit purpose of an association-in- fact enterprise may be members of it] is presented here in high relief"). At least one court of appeals has held that governmental entities may not be subject to liability under RICO, on the ground that such entities are them selves "incapable of forming a malicious intent." Lan caster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991), cert. denied, 502 U.S. 1094 (1992). Even if a governmental entity is immune from liability under RICO, however, the entity can still serve as a member of a RICO enterprise, with the result that persons who participate in the conduct of the enter prise's affairs through a pattern of racketeering activity may themselves be subject to liability. Accordingly, as with other types of legal entities, courts of appeals have uniformly recognized that governmental entities may qualify as members of an association-in-fact enterprise. See, e.g., United States v. Blandford, 33 F.3d 685, 703 (6th Cir. 1994) (state legislative office), cert. denied, 514 U.S. 1095 (1995); United States v. McDade, 28 F.3d 283, 296-297 (3d Cir. 1994) (congressional offices); United States v. Dischner, 974 F.2d 1502, 1511 (9th Cir. 1992) (mayor's office and department of public works), cert. denied, 507 U.S. 923 (1993).

b. Although petitioner apparently does not contend that a governmental entity could never be a member of an association-in-fact enterprise, he does assert (Pet. 14- 17) that the courts of appeals have established different standards for when legal entities (including governmen tal entities) can be members of an association-in-fact enterprise.4 That assertion lacks merit.

In Turkette, this Court defined an association-in-fact enterprise as "a group of persons associated together for a common purpose of engaging in a course of con duct." 452 U.S. at 583. In this case, the court of appeals held that, although a legal entity (such as a governmen tal entity) could not itself have an unlawful purpose, such a purpose could be imputed to it if the entity's ac tivities were controlled by individuals who themselves had such a purpose and who manipulated the entity's activities for that purpose. Pet. App. 13, 15. When indi viduals capture control of a governmental entity and conscript it to serve their own ends, it is proper to con sider those ends (even if corrupt) in determining whether the entity is pursuing a "common purpose" with the other members of the alleged association-in-fact en terprise. There is no reason to treat the governmental entity's lawful objectives as its only ones, when reality is otherwise. At the same time, the structure of the gov ernmental entity itself helps to ensure that the "enter prise" is "an entity separate and apart from the pattern of activity in which it engages," Turkette, 452 U.S. at 583, as well as distinct from the persons liable under RICO, see Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 162-163 (2001).

In asserting (Pet. 14) that the courts of appeals have taken "varying approaches" to the question of when le gal entities qualify as members of an association-in-fact enterprise, petitioner cites two decisions of other courts of appeals on which the court below itself relied. Those decisions do not conflict with the decision below. In United States v. Feldman, 853 F.2d 648 (1988), cert. denied, 489 U.S. 1030 (1989), the Ninth Circuit held that "RICO does not require 'intentional' or 'purposeful' be havior by corporations charged as members of an association-in-fact [enterprise]." Id. at 657. The Ninth Circuit proceeded to determine, consistent with Turkette, that there was sufficient evidence that there was an ongoing organization and that the members of the organization functioned as a continuing unit. Id. at 657-659. At most, Feldman suggests that a legal entity may be a member of an association-in-fact enterprise even absent a showing that the entity's activities were controlled by individuals who had an unlawful pur pose-not that such a showing would be insufficient. And in Perlholtz, supra, the D.C. Circuit reasoned that the corporations at issue qualified as members of a uni tary association-in-fact enterprise because they were "controlled as a practical matter" by individuals who "sought financial gain from the award of government contracts" and "were instrumental in executing the charged schemes." 842 F.2d at 354. Like the decision below, Perlholtz stands simply for the proposition that a legal entity can be regarded as a member of an association-in-fact enterprise if the entity's activities were controlled by individuals who had an unlawful pur pose and who manipulated the entity's activities for that purpose.5

The other two cases cited by petitioner are likewise unhelpful to him. In VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696 (6th Cir. 2000), the court concluded that an alleged association-in-fact enterprise involving a mortgage lender and secondary lenders was invalid because the relationship between the lenders lacked even a "minimal level of organizational structure" and was "too unstable and fluid" to qualify as a "contin uing unit" under Turkette. Id. at 699-700. Similarly, in Stephens, Inc. v. Geldermann, Inc., 962 F.2d 808 (8th Cir. 1992), the court concluded that the alleged enter prise was invalid because "[the] group * * * had no structure independent of the alleged racketeering activ ity" and "[t]he only common factor that linked all [the] parties together and defined them as a distinct group was their direct or indirect participation in [the] scheme to defraud." Id. at 815-816. Neither VanDenBroeck nor Stephens rejects the proposition that a legal entity can qualify as a member of an association-in-fact enterprise upon a showing that the activities of the entity were con trolled by individuals with an unlawful purpose; instead, each of those cases holds only that the organization at issue lacked sufficient structure to constitute an association-in-fact enterprise. Petitioner therefore fails to identify a circuit conflict that warrants this Court's review.6

2. Further review is also unwarranted on peti tioner's claim (Pet. 21-29) that his tape-recorded state ments to the undercover government agent were admis sible under the "state of mind" exception to the hearsay rule.

a. As relevant here, Federal Rule of Evidence 803(3) provides that "[a] statement of the declarant's then ex isting state of mind, emotion, sensation, or physical con dition (such as intent, plan, motive, design, mental feel ing, pain, and bodily health)" is admissible even if that statement constitutes hearsay.7 Rule 803's various ex ceptions to the hearsay rule are predicated on the notion that, under the circumstances specified in the excep tions, a hearsay statement is inherently reliable. See Fed. R. Evid. 803 advisory committee's note. A state ment covered by the "state of mind" exception in Rule 803(3), which constitutes a "specialized application" of the "present sense impression" exception in Rule 803(1), is considered to be inherently reliable on the theory that "substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrep resentation." Ibid. Consistent with that theory, courts have held that, where the declarant has "had an oppor tunity to reflect and possibly fabricate or misrepresent his thoughts," a statement does not qualify for the "state of mind" exception. United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995), cert. denied, 516 U.S. 1043 (1996); accord United States v. Reyes, 239 F.3d 722, 743 (5th Cir.), cert. denied, 533 U.S. 961 and 534 U.S. 868 (2001); United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir.), cert. denied, 449 U.S. 1016 (1980); see gener ally 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.05[2][a] at 803-29 & n.4 (2d ed. 2000) (citing other cases).

Because petitioner had the "opportunity to reflect and possibly fabricate or misrepresent his thoughts," his tape-recorded statements do not qualify for the "state of mind" exception. As the transcript of the conversation reflects (C.A. App. 347-392), petitioner made the state ments at issue during a lengthy meeting over lunch with the government agent, who was posing as an air-condi tioning salesman seeking a city contract. At some point either before or during the meeting, petitioner formed the suspicion that the agent was working for the Federal Bureau of Investigation-and subsequently expressed that suspicion to a third party. See id. at 382. More over, petitioner made the statements at issue-in which he told the government agent, inter alia, that "[n]o one w[ould] ask [him] for a thing," id. at 378-even though the subject of corruption had not even been broached. All of those circumstances suggest that petitioner had ample opportunity (and motive) to fabricate his state ments, and the court of appeals thus correctly concluded that petitioner's statements do not qualify for the "state of mind" exception.

b. Petitioner contends (Pet. 21, 22) that the court of appeals' decision is inconsistent with this Court's deci sion in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892). That contention lacks merit. In Mutual Life, this Court merely stated the common-law rule, later codified in Rule 803(3), that a hearsay statement of the declarant's state of mind was admissible where that statement was relevant to the underlying issue in the litigation. Id. at 295-296. Although the Court noted that the truth or falsity of such a statement was a matter for the jury, id. at 296, the Court did not specifically address whether, and under what circumstances, a statement may be so far removed from a "natural re flex[]" that it would not qualify for the common-law "state of mind" exception, ibid. Notably, in asserting that Rule 803(3) left the rule of Mutual Life "undis turbed," the Judicial Conference Advisory Committee expressly read Mutual Life as doing nothing more than "allowing evidence of intention as tending to prove the doing of the act intended." See Fed. R. Evid. 803 advi sory committee's note. Mutual Life therefore sheds little light on the circumstances under which a declara tion does not qualify for the "state of mind" exception under Rule 803(3).

c. Petitioner correctly notes (Pet. 20-21, 23-26) that the Second Circuit has held that statements are admissi ble under the "state of mind" exception regardless of their lack of trustworthiness, reasoning that the credi bility of such statements is a matter for the factfinder to resolve. See, e.g., United States v. Lawal, 736 F.2d 5, 8- 9 (1984); United States v. DiMaria, 727 F.2d 265, 271- 272 (1984). Petitioner all but acknowledges, however, that the Second Circuit's decisions in Lawal and DiMaria can be reconciled with the decisions of other circuits excluding statements where the declarant had an opportunity to fabricate them. See Pet. 25 (noting that "[a]n inquiry into whether the declarant had time to reflect is similar to, but not the same as, an inquiry into the declarant's credibility"); cf. 2 John W. Strong et al., McCormick on Evidence § 274, at 217 n.8 (5th ed. 1999) (suggesting that "these positions share some common ground"). And, contrary to petitioner's assertions (Pet. 21, 23-24), the Seventh Circuit has attempted to recon cile the standards of the Second Circuit and other cir cuits. In United States v. Peak, 856 F.2d 825, cert. de nied, 488 U.S. 969 (1988), the Seventh Circuit held that a court could not exclude a statement under Rule 803(3) on the ground that the declarant was not credible, but it also recognized that a court could exclude a statement on the ground that the degree of reliability inherent in the statement was low. Id. at 834. And in other cases, the Seventh Circuit has expressly held that, in deciding whether to exclude a statement under Rule 803(3), a court could consider whether the declarant had the op portunity to fabricate the statement. See, e.g., United States v. Macey, 8 F.3d 462, 467-468 (7th Cir. 1993); United States v. Harvey, 959 F.2d 1371, 1375 (7th Cir. 1992); United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986).8

Even assuming, however, that some tension exists in the various circuits' approaches, this case would be a poor vehicle for resolving it. The district court excluded petitioner's statements not on the ground that they were unreliable, but rather on the ground that they were irre levant to the underlying legal issues because they "did not relate to any predicate act or to any specific matter with respect to which the Government has presented any evidence." Pet. App. 60; 6/6/02 Tr. 107. And while the court of appeals noted that petitioner's statements were "self-serving," it also expressed doubt about the relevance of the statements, noting that "[t]he only pur pose for which the statement could have been admitted would have been to establish [petitioner's] state of mind at the time the statement was made" and adding that "[the fact] [t]hat the statement was made at one point during the time of charged conspiracy cannot be suffi cient to mandate its admission." Pet. App. 61.9 To the extent that petitioner's statements were not relevant, they would not be admissible even if they otherwise met the requirements of Rule 803(3). Cf. Jackson, 780 F.2d at 1315 (excluding, primarily on relevance grounds, statements about declarants' intent made two years af ter the actions at issue).10

Finally, even assuming that petitioner's statements had some marginal relevance, any error in failing to ad mit those statements was harmless. Although the court of appeals did not reach the government's argument that any error was harmless, it did recognize, in rejecting petitioner's related due process claim, "the amount of evidence of [petitioner's] criminal knowledge and intent presented at trial." Pet. App. 63. In light of that over whelming evidence, the exclusion of statements express ing petitioner's intent in the context of events not at is sue cannot affect petitioner's substantial rights. Fur ther review of petitioner's evidentiary claim is therefore not merited.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

JOEL M. GERSHOWITZ
Attorney

SEPTEMBER 2005

1 The court of appeals initially issued an opinion affirming peti tioner's conviction (and those of his co-defendants), but requesting supplemental briefing and argument on, inter alia, whether petitioner's sentence should be vacated in light of Blakely v. Washington, 542 U.S. 296 (2004). Pet. App. 64. While supplemental briefing was ongoing, petitioner unsuccessfully sought en banc review. Id. at 76-77. The court of appeals subsequently entered a single order of judgment, af firming petitioner's conviction but vacating his sentence in light of United States v. Booker, 125 S. Ct. 738 (2005). Pet. App. 78-79. Peti tioner received the same sentence on remand.

2 The original indictment alleged a somewhat broader enterprise. See Pet. 5 n.1.

3 The court of appeals also rejected petitioner's contention, made for the first time on appeal, that the failure to admit the tape recording violated due process. Pet. App. 62-63.

4 Petitioner does not also contend that the court of appeals erred by determining that the activities of the governmental entities at issue were controlled by petitioner and his co-defendant Corrente-the issue on which the majority and dissent below disagreed at length. Compare Pet. App. 15-24 (majority), with id. at 68-75 (dissent). In any event, that determination was quintessentially fact-bound and does not warrant further review.

5 As petitioner notes (Pet. 16), the D.C. Circuit also determined that the individuals "formed their corporations to further their common objectives." Perlholtz, 842 F.2d at 354. The court, however, relied on that fact not in concluding that the corporations qualified as members of a unitary association-in-fact enterprise, but rather in concluding that an individual defendant was distinct from the enterprise. See ibid.

6 As the court below acknowledged (Pet. App. 11-12), some courts of appeals have held that an association-in-fact enterprise must have an "ascertainable structure" distinct from that inherent in the conduct of the underlying racketeering activity, while others have disclaimed such a requirement. Although petitioner recognizes the existence of cases adopting the "ascertainable structure" requirement, see, e.g., Pet. 18 n.7, he does not explicitly ask this Court to resolve any broader conflict concerning that requirement. This Court has denied review in at least two cases in which other petitioners have asserted such a conflict. See Kirillov v. United States, 534 U.S. 1043 (2001) (No. 01-5965); Arthur v. United States, 534 U.S. 1043 (2001) (No. 01-5868).

7 Petitioner does not dispute that his statements to the government agent constituted hearsay because they were being offered to prove the truth of the matter asserted.

8 Petitioner also suggests (Pet. 24) that the Fifth, Sixth, and Ninth Circuits have adopted a standard that "fall[s] somewhere between the ruling of the First Circuit in this case and the contrary holdings of the Seventh and Second Circuits." But the court of appeals in this case relied on decisions of the Fifth and Ninth Circuits, see Pet. App. 62, and petitioner identifies nothing in the decision below that squarely conflicts with any Fifth, Sixth, or Ninth Circuit decision.

9 Petitioner seemingly suggests (Pet. 20) that his statements were relevant because they constituted "statement[s] of future intention." Even assuming, however, that petitioner's statements were forward- looking (as the text of Rule 803(3) itself requires), it is clear that they related only to the particular transaction being discussed. See Pet. App. 60.

10 Petitioner correctly notes (Pet. 29 n.10) that the courts below did not rely on Federal Rule of Evidence 403, which allows the exclusion of relevant evidence where the probative value of the evidence is substan tially outweighed by the danger of unfair prejudice or other consider ations. To the extent that the courts below concluded that the evidence at issue had no relevance, however, the pertinent rule is not Rule 403, but rather Rule 402, which provides that evidence that is not relevant is not admissible.