Plaintiff-Appellee, v.
Franjo IVIC, Nedjelko Sovulj, Ivan Cale and Stipe Ivkosic,
Defendants-Appellants
Nos. 81-1350, 81-1351, 81-1352, 81-1353, Nos. 296, 297, 286, 301 - August Term, 1982
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
700 F.2d 51; 1983 U.S. App. LEXIS 31061
November 15, 1982, Argued
January 25, 1983, Decided
PRIOR HISTORY: Appeals from judgments of the District Court for the Southern District of New York, Milton Pollack, Judge, convicting defendants, members of a Croatian nationalist terrorist organization, after a jury trial, on six counts of a seven count indictment, and imposing sentences ranging from 20 to 35 years.
DISPOSITION: Affirmed except that the convictions on count 1 (RICO) are reversed and the count is dismissed, and that the sentences on counts 5 and 6 are vacated and the cause is remanded to permit resentencing.[.....]
JUDGES: Feinberg, Chief Judge, and Friendly and Oakes, Circuit Judges.
OPINION BY: FRIENDLY
OPINION: FRIENDLY, Circuit Judge:
These appeals from judgments of conviction in the District Court for the Southern District of New York, after a trial before Judge Pollack and a jury, concern the terrorist activities of four Croatian nationalists from mid-November to mid-December, 1980. During this one-month period, a Joint Terrorism Task Force, made up of Special Agents of the Federal Bureau of Investigation (FBI), detectives of the New York City Police Department Arson and Explosives Section, as well as other FBI personnel, including a number of agents and translators able to understand Serbo-Croatian, conducted a large scale investigation, including the operation of four interception devices, the execution of eight search warrants, and around-the-clock physical surveillance of the four appellants and their coconspirators. This investigation culminated in the apprehension of these four appellants without the loss of life or limb or the destruction of property which the evidence demonstrated they intended.
After thorough consideration of appellants' many contentions, we affirm all the convictions except those on Count One under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(d). As to these we hold that appellants' acts and plans, however misguided, are not within RICO.
THE FACTS
The evidence at trial showed the following: [1.] Defendants, Cale, Ivic, Sovulj, and Ivkosic, were active partisans of Croatian independence, committed to the separation of Croatia from Yugoslavia. [2.] Defendant Cale owned a house at 31 North Eckar St., Irvington, New York. He lived on the bottom floor of the house and rented the top floor to defendant Ivkosic. Defendant Ivic, who had preceded Ivkosic as Cale's tenant, resided at 381 Broadway, Dobbs Ferry, New York. Ivkosic was the owner of a white Chevrolet van, registered to him at the North Eckar St. address.
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 independence movement who favored less gentle methods: Indeed, on at least one occasion his life had been threatened in a leaflet distributed by a member of OTPOR, a Croatian separatist organization of which defendants were members.
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 cross-walk 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 [3.] containing a fully operational time-bomb, consisting of 3 cartridges of 80% gelatin dynamite connected to an electric blasting cap and a clock. The time-bomb was set to explode five hours after circuitry contact was made. Thus, had the bomb been placed at the dance studio during the afternoon of November 29, it would have exploded in the middle of that evening's Independence Day festivities. Ivic did not in fact place the bomb because, as he explained later to Cale, "There was no place to park. And at the last moment you have to put that thing together, you understand?". A search of the Caron residence on Colony Street in Bridgeport on December 18, 1980, again pursuant to warrant, yielded eleven cartridges of 80% gelatin dynamite and electric blasting caps identical to the three cartridges and blasting cap in the time-bomb found in the telephone company bag in Ivic's apartment. This and other evidence furnished the basis for Count 2, charging a conspiracy to transport and utilize explosives in violation of 18 U.S.C. §§ 371 and 844, for Count 3, a substantive count for unlawful interstate transportation and receipt of explosives in violation of 18 U.S.C. §§ 844(d) and 2, and for Counts 4 and 5, charging attempts by means of explosives to damage and destroy, respectively, the vicinity of Washington Square Park [4.] and a building on Union Square West, in violation of 18 U.S.C. §§ 844(i) and 2, as well as providing two possible predicates for the RICO conspiracy count.
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
[.....]
Sentences:
Cale: Sentences on counts 1 and 2 are consecutive, the total there of 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. 1981), we shall deal briefly with certain of their contentions.
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, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965), "affidavits 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).
[.....]
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, 50 L. Ed. 2d 652, 97 S. Ct. 658 (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 "it 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 Three, which enterprise was engaged in and the activities of which affected interstate and foreign commerce, did unlawfully, wilfully and knowingly conspire and agree to conduct and participate, directly and indirectly, in the affairs of that enterprise through a pattern of racketeering activity: that is, through two or more acts and threats of murder and arson in violation of" certain laws of the State of New York. The fifth paragraph alleged that "in conducting the affairs of their criminal enterprise through this pattern of racketeering activity, the defendants and others with whom they were associated performed the following acts and actions among others." There followed a list of 27 acts reading like the listing of overt acts usual in a garden-variety conspiracy indictment but unnecessary in a RICO conspiracy indictment.
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, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (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. [5.]
[.....]
Defendants joined together not to make money but, as the indictment itself stated, see slip op. pp. 15-16, supra, to advance the goal of Croatian independence. They undertook to murder Badurina and to bomb the dance studio and the travel agency not to obtain money, but rather to eliminate political opponents, win publicity, or otherwise further their chosen cause. [6.] If "enterprise" in subsection (c) is given the same meaning which that term clearly has in subsections (a) and (b), then the group to which the indictment charged and the proof showed that defendants belonged is outside its scope.
[.....]
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.
[.....]
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, 60 L. Ed. 2d 378, 99 S. Ct. 2001 (1979)...
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.
[.....]
We have no doubt of the sufficiency of the evidence with respect to the attempt to bomb the dance studio on Union Square (Count 5). The defendants charged in that count had obtained dynamite and bomb paraphernalia, constructed a fully operational time bomb, inspected the building to be bombed, picked a precise time for the bomb to explode, and transported the bomb to the close vicinity of the site. They had done every act that would have been involved in the complete crime save for setting the time bomb in place, and there is every reason to think they would have done that too had it not been for the unavailability of parking space. Here there was more even that a "substantial step", there was "dangerous proximity to success", Hyde v. United States, 225 U.S. 347, 388, 56 L. Ed. 1114, 32 S. Ct. 793 (1912) (Holmes, J., dissenting).
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 237 (1980), as being "remarkably on all fours with this case." [10.] In fact, however, the evidence there of planning - or at least of what Brown thought to be such - was considerably more extensive than here; on the other hand, in Brown explosives had not been procured, the persons relied upon to make the procurement being undercover agents. Recognizing that the question is inescapably "a matter of degree", see United States v. Jackson, supra, 560 F.2d at 120, we conclude that the evidence, viewed in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), was sufficient, although barely so, to support the convictions on Count 6.
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 concluded beyond a reasonable doubt that one or more defendants acquired and had readily available explosives with the intention of carrying out the bombing charged in the count, or if it concluded beyond a reasonable doubt that one or more defendants reconnoitered and inspected a bomb target in planning for its destruction, then it might conclude that either of these acts, standing alone, constituted a substantial step in furtherance of the bombing.
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:
In each instance it is up to you to determine whether the acts of a defendant, individually or together with other acts, reaches the level of a substantial step in furtherance of an intended crime - and hence constitutes a criminal attempt.
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 slip op. pp. 9-10, 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.
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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.
Footnotes
1. A considerable part of the evidence was obtained as a result of electronic surveillance authorized by District Judge Owen of the Southern District and District Judge Platt of the Eastern District of New York. We shall discuss below the questions raised as to the legality of this surveillance. [back]
2 Croatian nationalism has roots deep in the nineteenth century, when Croatia was part of the Hapsburg Empire. The formation in 1918 of the Kingdom of Serbs, Croats, and Slovenes, renamed the Kingdom of Yugoslavia in 1929, did not fully satisfy Croatian nationalist aspirations. A nominally independent state from 1941 to 1945, Croatia has been since 1945 one of the six constituent republics of the Federal People's Republic of Yugoslavia. Separatist agitation has persisted in the post-World War II period, despite the decentralizing policies followed by the Belgrade Government. The Croats are the second largest national group in Yugoslavia, after the Serbs. Their differences with the latter are ethnic, religious (they are Roman Catholics and the Serbs Orthodox), and linguistic (though their spoken language is the same, their alphabets are different). [back]
3 The particular significance of this purse was that Cale and Ivic had emphasized the desirability of having the bomb placed at the studio by a woman, whom they said Sovulj had agreed to supply. [back]
4 Apparently this concerned the cruising immediately antecedent to the stop on Union Square. [back]
5 The argument that RICO is inapplicable to a case where there is no charge of economically motivated activity was not advanced in any intelligible form in the district court. The brief (pp. 14-16) and reply brief (pp. 5-7) for Ivic and Sovulj in this court could be charitably read as making the point. However, after we had sharply raised the issue at oral argument we requested the Government and the appellants to submit letter briefs on the subject, which they have done. The Government, while arguing vigorously against the substance of the position we had suggested, does not claim there is any procedural bar to our taking note of it. This position was well advised. F.R.Cr.P. 12(b) (2) provides that the failure of an indictment to charge an offense "shall be noticed by the court at any time during the pendency of the proceedings." The term "pendency of the proceedings" had been consistently construed to encompass an appeal. See, e.g., United States v. Thomas, 144 U.S. App. D.C. 44, 444 F.2d 919, 920 n.1 (D.C. Cir. 1971) and cases cited there; United States v. Clark, 646 F.2d 1259, 1262 (8 Cir. 1981).See also United States v. Wexler, 621 F.2d 1218, 1223 (2 Cir.), cert. denied, 449 U.S. 841, 101 S. Ct. 119, 66 L. Ed. 2d 48 (1980). Appellate courts are permitted, Government of Virgin Islands v. Greenidge, 600 F.2d 437, 439 n.2 (3 Cir. 1979), indeed required, United States v. Meacham, 626 F.2d 503, 509 (5 Cir. 1980), to raise the issue sua sponte.
In addition, F.R.Cr.P. 52(b) provides that " Plain errors 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, 89 L. Ed. 1495, 65 S. Ct. 1031, plurality opinion of Justice Douglas, 118, concurring opinion of Justice Rutledge, (1945); Silber v. United States, 370 U.S. 717, 8 L. Ed. 2d 798, 82 S. Ct. 1287 (1962) (per curiam); Fisher v. United States, 328 U.S. 463, 467-68, 90 L. Ed. 1382, 66 S. Ct. 1318 (1946); United States v. Bacall, 443 F.2d 1050, 1063 (9 Cir.), cert. denied, 404 U.S. 1004, 30 L. Ed. 2d 557, 92 S. Ct. 565 (1971); United States v. Adams, 634 F.2d 830, 836 (5 Cir. 1981). See also United States v. Atkinson, 297 U.S. 157, 160, 80 L. Ed. 555, 56 S. Ct. 391 (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). [back]
6 The Government tells us that in some cases terrorist organizations have engaged in robbery or extortion to obtain money to further their activities. The applicability of RICO to such cases can be dealt with when and as they arise. [back]
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10 Decisions of the Fifth Circuit on the subject of attempt are peculiarly persuasive since that court's Mandujuano decision, supra, 499 F.2d 370, is a leading case adopting the approach of the ALI Model Penal Code which this court followed in Stallworth, supra, 543 F.2d 1038. [back]