Defendant Ronald Ocasio was convicted, following a ten-week jury trial, of violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. §§ 1961-1968, and the Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 U.S.C. § 1959. The counts of conviction included: (1) participating in the conduct of a racketeering enterprise in violation of 18 U.S.C. § 1962(c) by committing the predicate racketeering acts of murder, attempted murder, conspiracy to ■commit murder, and narcotics trafficking; (2) conspiring to conduct and participate in the affairs of a racketeering enterprise in violation of 18 U.S.C. § 1962(d); (3) conspiracy to murder Kelvin Lyons and Joseph Hendrickson for the purpose of maintaining position in a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5); (4) attempted murder of Lyons, in violation of 18 U.S.C. §§ 1959(a)(5) and 2; (5) murder of Rufus Brown, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (6) conspiracy to murder Robert Antonetti, in violation of 18 U.S.C. § 1959(a)(5); (7) murder of Robert Antonetti, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (8) conspiracy to murder Axel Antonetti, in violation of 18 U.S.C. § 1959(a)(5); (9) murder of Axel Antonetti, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (10) conspiracy to distribute and possess with intent to distribute heroin and cocaine base, in violation of 21 U.S.C. § 846; (11) using and carrying a firearm during and in relation to the conspiracy to murder Lyons and Hendrickson, the attempted murder of Lyons, and the murder of Brown, in violation of 18 U.S.C. §§ 924(e) and 2; (12) using and carrying a firearm during and in relation to the conspiracy to murder and the murder of Robert Antonetti, in violation of 18 U.S.C. §§ 924(c) and 2; and (13) using and carrying a firearm during and in relation to the conspiracy to murder and the murder of Axel Antonetti, in violation of 18 U.S.C. §§ 924(c) and 2. The district court (Batts, J.) sentenced Ocasio
On appeal, Ocasio contends that (1) the district court erred in refusing to charge that in order to find that he had committed the racketeering act or VICAR act of conspiracy to murder, the jury must find that a member of the conspiracy had committed an overt act in furtherance of the conspiracy;' (2) insufficient evidence supported the finding that he had committed certain racketeering acts; (3) the government failed to disclose information in a timely manner and this failure denied him a fair trial; (4) the manner in which the case was prosecuted denied him due process; (5) the district court erred in refusing to give the defense’s requested instructions regarding witness credibility; (6) the jury instructions omitted some of the overt acts listed in the original indictment’s drug conspiracy count; (7) he received ineffective assistance of counsel; (8) the government violated 18 U.S.C. § 201(c)(2) by making promises of value to witnesses in exchange for testimony; (9) the government proved multiple conspiracies rather than the conspiracy charged, and the court erred by failing to give a multiple conspiracy charge; and (10) the district court unreasonably restricted the defense’s cross-examination of witnesses. We reject Oca-sio’s contentions and affirm the judgment of conviction. His contentions numbered (2) through (10) above are insubstantial and require no discussion. We reject his first contention for the reasons given below.
BACKGROUND
The evidence at the trial demonstrated that Ocasio was the leader of a racketeering enterprise known as the “Bryant Boys,” so named because its drug distribution operations were centered at 850 and 860 Bryant Avenue, Bronx, New York. Cooperating co-defendants who had been involved in the Bryant Boys enterprise, as well as other witnesses, including law enforcement officers, testified to the organization and history of the enterprise’s heroin and crack distribution operation, and to Ocasio’s role in it. The Bryant Boys began operating as early as 1987 by selling heroin in glassine bags in front of 860 Bryant Avenue. As their operation expanded, the Bryant Boys began selling crack cocaine as well, and began selling from inside an abandoned building at 850 Bryant Avenue. The building was known as “the Hole” because its courtyard was surrounded by a high wall, and all of its windows were covered over, leaving open only a small hole in one wall through which drugs and money could be passed. By early 1991, the Bryant Boys sold drugs at these “spots” twenty-four hours a day, seven days a week, in eight-hour shifts. In each eight-hour shift, they sold approximately 350 bundles of heroin, containing ten glassine bags per bundle, and approximately 140 packs of crack cocaine, each containing 50 vials of crack.
Sometime in 1990, Rudolph Wyatt, who had worked as a hitman for the Bryant Boys at Ocasio’s direction, got into an argument and physical altercation with Angel Ocasio, the' defendant’s brother. On October 21, 1990, the defendant Ocasio told Arnold Rodriguez to call Wyatt and ask him to come to Bryant Avenue. Rodriguez did so, and Wyatt, accompanied by Carl Norris and Cartrell Campbell, met Rodriguez across the street from 860 Bryant Avenue. They began to approach the building. Ocasio and his two brothers, William and Angel, then came out of the building, and Ocasio tossed a bag to Wyatt. As Wyatt opened the bag, Ocasio drew a gun and shot him. At the same timé, William and Angel Ocasio drew their own guns and began shooting at and pursuing Norris and Campbell. In the ensuing con- • fusion, Wyatt, though wounded, escaped into a nearby restaurant. Later, Ocasio caught up to Norris and shot and killed him; two witnesses observed the shooting
The “spots” closed for a brief period in 1992 due to a battle for control of the drug-selling turf between Ocasio and Xavier Carrillo. The battle was precipitated when Manny Burgos, Carrillo’s nephew, attempted to open his own heroin-selling operation across the street from 860 Bryant, and Ocasio had Burgos murdered. When the battle ended, Ocasio was left in sole control of the Bryant Boys. Although Ocasio was jailed in 1993 for attempted bribery in connection with his trial in state court for the murder of Carl Norris, his brother Angel took charge of the Bryant Boys, and defendant Ocasio continued to instruct members of the Bryant Boys from jail. The “spots” closed briefly in 1994, when the Bryant Boys found themselves in a number of gun battles with the Nasty Boys, a rival drug gang.
After the murder of Burgos, Ocasio was shot at while entering his home, and Oca-sio concluded that the attack was Carrillo’s response — he believed Carrillo had hired Kelvin Lyons and Joseph Hendrickson to kill him, and that Lyons or Hendrickson had fired the shot. In fact, Carrillo had enlisted Lyons in an effort to have Ocasio and other members of the Bryant Boys killed after the Burgos murder. Lyons, in turn, suspected Ocasio and José Serrano of trying to kill him, and hired Hendrickson in an attempt to kill Serrano. Thereafter, Ocasio enlisted members of the Bryant Boys to kill Lyons and Hendrickson, among others.
By Thanksgiving Day of 1992, Lyons was no longer a member of the Bryant Boys and instead was operating his own crack selling “spot,” where he employed Rufus Brown. On that Thanksgiving Day, while Lyons and Brown were walking from Lyons’s “spot” on Seneca Avenue to a taxi stand, several of Ocasio’s henchmen, including Serrano, watching from the roof of 860 Bryant Avenue, recognized Lyons, and mistook Brown for Hendrickson. They ran downstairs and told Ocasio they had seen Lyons. Ocasio then armed himself with a handgun, gave Serrano another handgun, and went with the entire group to the building’s basement, where they could peek out onto Seneca Avenue through a fire door. At Ocasio’s direction, Serrano peeked outside, and reported that he saw Lyons and Hendrickson (who was really Brown). Roland Montes, another member of the group, then volunteered to shoot, and took Serrano’s gun. With Montes, Ocasio ran into the street and shot and killed Brown (believing he was Hendrickson), while Montes shot at Lyons but failed to kill him. The government’s cooperating witnesses testified to these events, and them testimony was corroborated by the observations of the law enforcement officers who later arrived at the scene, as well as by the bullets found in Brown’s body.
After Ocasio gained sole control of the Bryant Boys and reopened the Bryant Boys’ drug selling “spots” in 1992, the Bryant Boys retained Axel Antonetti to work the overnight shift selling drugs. Subsequently, Axel Antonetti’s brother, Robert Antonetti, began robbing the Bryant Boys and them customers of money and drugs. As a result, Ocasio hired Len Saunders to kill Robert Antonetti, and told him to use Teo Johnson as his lookout. Using Johnson as lookout, Saunders then killed Robert Antonetti.
Soon afterwards, Ocasio fired Axel Anto-netti. Bryant Boys’ workers and customers thereafter began complaining that Axel Antonetti was robbing them. Ocasio then hired Saunders to kill Axel Antonetti. Again, Ocasio told Saunders to use Johnson as a lookout, and Arnold Rodriguez gave Saunders a handgun to use for the killing. Saunders then shot and killed Axel Antonetti, and Ocasio later paid Saunders. At that time, Saunders stated that he had shot Antonetti repeatedly, and ballistics and medical evidence corroborated this account.
When the district court was ready to formulate its instructions to the jury regarding Ocasio’s racketeering acts and VICAR acts consisting of conspiracy to murder, Ocasio’s counsel requested that the court charge as follows:
If you are satisfied that a conspiracy at issue did exist, and second, that Mr. Ocasio was a member of the conspiracy charged, then you must determine whether one of the members of the conspiracy took some affirmative step in furtherance of the conspiracy to achieve the object of the conspiracy during the life of the conspiracy. This is what we call an overt act.
Now, an overt act is any step, action or conduct which is taken to achieve, accomplish or further the objects of the conspiracy committed by one or more of the co-conspirators.
The overt act may be by itself an innocent act, like a phone call. It may not be a criminal act at all. On the other hand, the overt act may be the crime which was the object of the conspiracy.... For the government to satisfy the overt act requirement, it is required only to prove beyond a reasonable doubt that either Mr. Ocasio or one of his alleged co-conspirators knowingly committed an overt act in furtherance of the conspiracy.
In this regard, counsel’s request distinguished the racketeering acts and VICAR counts of murder conspiracy from those of drug conspiracy, pointing out that conviction of the federal crime of conspiracy to distribute narcotics does not require that a member of the conspiracy committed an overt act in furtherance of the conspiracy, while conviction of the New York State crime of conspiracy to murder does require that one of the conspirators committed an overt act in furtherance of the conspiracy. Compare N.Y. Penal Law § 105.20 (“A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.”), with United States v. Shabani,
Nevertheless, the district court declined to charge the jury that in order to find that the defendant had committed the racketeering act or VICAR act of conspiracy to murder, it would have to find that a member of the conspiracy had committed an overt act in furtherance of the conspiracy. The court reasoned that because an indictment need not list the state law elements of racketeering acts that in combination constitute a RICO offense, see, e.g., United States v. Orena,
The district court ultimately charged the jury that to find that the defendant committed a racketeering act consisting of either conspiracy to murder or conspiracy to distribute narcotics, or a VICAR act of conspiracy to murder, the jury must find “that two or more persons entered an unlawful agreement or understanding, which objective was to violate provisions of the law” and “that the defendant knowingly and willfully became a member of each conspiracy, that is, that he knowingly associated himself and participated in the alleged conspiracy.”
DISCUSSION
Ocasio contends that reversal of certain counts is required because of the district court’s failure to give the requested charge on the need for an overt act to prove conspiracy under New York State law. The Government, in response, argues that in a RICO prosecution, the court need not charge each element of the state law crimes constituting the predicate racketeering acts. Rather, generic definitions of the crimes suffice. The government relies primarily on two authorities. In United States v. Bagaric,
At oral argument, the government relied on United States v. Coonan,
Likewise, the government cites Orena, where we held that despite New York law’s inclusion of “an overt act” on the part of one conspirator as an element of the crime of conspiracy, neither a RICO indictment relying on conspiracy to murder as a predicate racketeering act nor a VICAR indictment alleging conspiracy to murder needed to allege specifically that overt acts had been committed in furtherance of the conspiracy. See Orena,
The Coonan and Orena authorities do not support the government’s argument. Refusal to incorporate state procedural and evidentiary requirements has no logical bearing on the issue whether in a federal RICO prosecution the government must prove the elements of the state law offense that serves as a predicate racketeering act. Further, the proposition that the indictment need not recite all elements of the state law offense constituting a racketeering act does not, without further explanation, lead to the conclusion that the government is excused from proving those elements. The rule of Orena regarding what an indictment must contain is not unusual or in any way peculiar to RICO indictments. As a general matter, an indictment must be “framed to apprise the defendant!,] -with reasonable certainty, of the nature of the accusation against him” and “accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense ... with which he is charged.” Russell v. United States,
The government is correct, however, that Bagaric supports the government’s position. We have doubts, however, whether Bagaric’s principle can be applied as a practical matter in all circumstances. If the conduct proved at trial did not satisfy the elements of the offense as defined by state law, a jury could not find that the defendant had committed the state law offense charged as a predicate act of racketeering. Likewise, even assuming evidence from which a jury could find a violation of state law, if the defendant’s acts as found by the jury did not include all the essential elements of the state law offense, by definition, no state offense would have been found. It is difficult to see (notwithstanding the statements in Diaz
We can imagine circumstances in which a failure to charge the jury on the elements of the state law crimes constituting predicate racketeering acts would be of small practical consequence. Consider, for instance, a defendant charged with robbery as a predicate act where the undisputed evidence shows the victim was robbed by a stranger at gunpoint and the only issue in question is whether defendant was the robber. There would be little or no danger that the jury might have found the defendant guilty based on a faulty understanding of what robbery consists of. But in other kinds of cases, confusion and unfairness can arise from failure to charge the elements of the state law crimes constituting racketeering acts.
We illustrate our concerns with variants of a hypothetical case. Assume a defendant charged with a RICO violation based on a predicate racketeering act of murder. (1) If the evidence showed only that the victim was killed by a gun held by the defendant, without any evidence that the defendant intended to harm or threaten the victim or to fire the gun, it seems clear enough that the defendant could not be properly found guilty of the murder. The evidence would be insufficient to show murder; we would think that a RICO conviction necessarily predicated on a finding of murder in such circumstances would have to be vacated. (2) It would be no different if the evidence included testimony to the effect that the defendant acted with intent to kill, but the jury rejected that evidence. Suppose, for example, the jury found the predicate act of murder but answered an interrogatory to the effect that the defendant fired the gun accidentally without intent to menace the victim. Once again, we doubt the conviction could stand because the defendant’s actions, according to the jury’s findings, would not constitute murder. (3) Assume as a third hypothetical: the evidence includes testimony that could support the requisite state of mind; the defendant contests it and asserts he acted in self-defense; the jury is instructed simply to find whether the defendant committed the offense of “murder,” but is not instructed as to the requisite state of mind or the law respecting self-defense; the jury finds that the defendant committed the predicate act of murder and is guilty on the RICO charge. There would be no way for the reviewing court to know whether the jury had found facts constituting murder. Affirming such a conviction would be seriously problematic because the defendant’s actions, as found by the jury, might not constitute murder. An appellate court would have no way of knowing what the jury found the defendant’s state of mind to be.
No doubt for these reasons, in spite of Bagaric, district judges conventionally instruct juries on the elements of the state law offenses charged as predicate acts.
We have assumed in this discussion that state law elements of the crimes constituting predicate RICO and VICAR acts must be proved. We recognize that we stated in Diaz that in applying VICAR to a conspiracy to assault, that “the government [was] not required to prove an ‘overt act’ under Connecticut law.” Diaz,
For the reasons that follow, however, it is unnecessary for us to pursue the question further or to consider whether the court should convene in banc to deliberate on the continuing authority of Ba-garic or Diaz.
CONCLUSION
We have considered Ocasio’s other contentions and find them to be meritless. The judgment of the district court is hereby Affirmed.
Notes
. Diaz’s statement that "the government [was] not required to prove an 'overt act,1 ”
. We note that although the Sand treatise on federal jury instructions does not address the issue of predicate acts with respect to RICO, the treatise does address the question with respect to the Travel Act. The Travel Act is a statute analogous to RICO in that it is an anti-racketeering statute that predicates federal criminal liability upon commission of state law crimes such as extortion and briber}'. See 18 U.S.C. § 1952. The treatise clearly states that the elements of the predicate state
. See 18 U.S.C. § 1961(1) (" '[Racketeering activity' means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code ... (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, or (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and
.Like New York's conspiracy statute, the federal conspiracy to murder statute requires an overt act by a member of the conspiracy in furtherance of the conspiracy. See 18 U.S.C. § 1117.
.See 18 U.S.C. § 1959(a) ("Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished ....”) (emphasis added).
.Prior to filing, this opinion was circulated to all the active judges of the court, and all have expressed agreement with it.