

November 8, 1994  UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1769

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                      FRANK ORETO, SR.,

                    Defendant, Appellant.

                                         

No. 91-1770

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                      FRANK ORETO, JR.,

                    Defendant, Appellant.

                                         

No. 91-1771

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                      DENNIS PETROSINO,

                    Defendant, Appellant.

                                         

                    CORRECTED ERRATA SHEET                                CORRECTED ERRATA SHEET

   The  opinion of  this Court  issued on  October 4,  1994, is
amended as follows:

   Page  2  of  the  Cover  Sheet, line  5:    Change  the name
"Dinisco" to "DiNisco".

   Page 3, lines 9-10:  Delete the words "Hobbs Act".

   Page 3, line 11:  After the number "894" add the words "(the
extortionate credit transactions or "ECT" statute)".

   Page  8, line  12:    Add  the word  "an"  before  the  word
"additional".

   Page 11, line 22:  Substitute "2" for "12".

   Page  17, lines 17-18:   Replace the words  "Hobbs Act" with
the words "ECT statute".

   Page 23, line 7:  Substitute "  892," for "  1892,".

   Page  23, line 25:   Replace the words  "Hobbs Act" with the
words "ECT statute".

   Page  24,  line 8:    Add  the  word  "by"  after  the  word
"employed".

   Page 29, line 16:  Delete the quotation marks after the word
"plus".

   Page 30, line 17:  Delete the word "moreover,".

   Page 30, line 18:  Change the words  "`Bible' and Daniel" to
"`Bible'; and Daniel".

   On  the  following pages  and  lines,  substitute "ECT"  for
"Hobbs Act":  Page  4, lines 7 and 10; page 6,  line 16; page 15,
lines 15,  18 and 22; page 17,  lines 1, 5 and  11; page 18, line
21; page 22, line 8;  page 27, line 23; page 28, lines  2, 4, 8-9
and 12.  

October 26, 1994
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         
No. 91-1769

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      FRANK ORETO, SR.,

                    Defendant, Appellant.
                                         

No. 91-1770
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                      FRANK ORETO, JR.,
                    Defendant, Appellant.

                                        
No. 91-1771

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      DENNIS PETROSINO,

                    Defendant, Appellant.
                                         

                         ERRATA SHEET                                     ERRATA SHEET

The  opinion of this Court  issued on October 4,  1994, is amended
as follows:

Page 2 of the Cover  Sheet, line 5:  Change the name "Dinisco"  to
"DiNisco".

Page 3, lines 9-10:  Delete the words "Hobbs Act".

Page 3,  line 11:   After  the number  "894" add  the words  "(the
extortionate credit transactions or "ETC" statute)".

Page 8, line 12:  Add the word "an" before the word "additional".

Page 11, line 22:  Substitute "2" for "12".

Page 17,  lines 17-18:   Replace the  words "Hobbs  Act" with  the
words "ETC statute".

Page 23, line 7:  Substitute "  892," for "  1892,".

Page 23, line  25:  Replace the words  "Hobbs Act" with the  words
"ETC statute".

Page 24, line 8:  Add the word "by" after the word "employed".

Page  29, line  16:   Delete the  quotation  marks after  the word
"plus".

Page 30, line 17:  Delete the word "moreover,".

Page  30, line  18:   Change  the  words "`Bible'  and Daniel"  to
"`Bible'; and Daniel".  

On  the following  pages and  lines, substitute  "ETC" for  "Hobbs
Act":  Page 4, lines 7 and 10;  page 6, line 16; page 15, lines 15, 18
and 22; page 17, lines 1, 5 and 11; page 18, line 21; page 22, line 8;
page 27, line 23; page 28, lines 2, 4, 8-9 and 12.

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1769
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                      FRANK ORETO, SR.,
                    Defendant, Appellant.

                                         
No. 91-1770

                  UNITED STATES OF AMERICA,
                          Appellee,

                              v.
                      FRANK ORETO, JR.,

                    Defendant, Appellant.
                                        

No. 91-1771
                  UNITED STATES OF AMERICA,

                          Appellee,
                              v.

                      DENNIS PETROSINO,
                    Defendant, Appellant.

                                         
        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. David S. Nelson, U.S. District Judge]                                                               

                                         
                            Before

                   Torruella, Circuit Judge,                                                       
               Campbell, Senior Circuit Judge,                                                         

                  and Boudin, Circuit Judge.                                                       
                                         

Charles W. Rankin, by Appointment of  the Court, with whom  Rankin                                                                              
&amp;  Sultan, Cornelius H.  Kane,  Jr, and  Charles  P. McGinty,  Federal                                                                    
Defender Office, were on consolidated brief for appellants.
Sean  Connelly, Department of Justice, with whom  Donald K. Stern,                                                                             
United  States  Attorney, Ernest  S.  DiNisco  and Todd  E.  Newhouse,                                                                             
Assistant  United  States  Attorneys,  were on  brief  for  the United
States.

                                         

                       October 4, 1994
                                         

     BOUDIN, Circuit  Judge.  Frank Oreto,  Sr., Frank Oreto,                                       

Jr., and Dennis Petrosino ("the appellants")  challenge their

convictions  on a number of charges arising out of an alleged

loansharking ring  operating in  Revere,  Massachusetts.   We

affirm.

                        I.  BACKGROUND

      The  appellants  were  charged   in  June  1987  in  an

indictment with offenses  under the Racketeer Influenced  and

Corrupt Organizations Act ("RICO"), 18 U.S.C.   1962, as well

as  offenses involving  the making  of extortionate  loans or

collection by extortionate means.  18 U.S.C.    892, 894 (the

extortionate  credit  transactions  or "ECT"  statute).   The

original indictment was 137  pages long, contained 82 counts,

and named several other defendants  besides the three who are

parties to  this appeal.  The structure  of the charges is of

some importance.

     Count 1 alleged a RICO  conspiracy involving all of  the

indicted  defendants.   The  alleged predicate  acts were  74

specific  instances of  extortionate  lending  or  collection

transactions  in violation of 18  U.S.C.    892,  894, and 62                                                                      

specific  instances  of usurious  lending  as  defined in  18

U.S.C.     1961(6).   Count 2  charged  each of  the indicted

defendants  with a substantive  RICO violation  and realleged

the same conduct as predicate acts.  Counts 3 through 76 then

alleged   each  of  74  extortionate  lending  or  collection

                             -7-                                         -7-

transactions as individual conspiracies to  violate 18 U.S.C.

   892, 894, or--in ten instances--as individual extortionate

collections by Oreto, Sr. in violation of the latter statute.

(Counts  76-82 involved  mail fraud charges  against indicted

defendants other than the three appellants.)

     Oreto, Sr.,  was named in  most of  the 74  transactions

that  formed   the  basis   for  the  RICO   conspiracy,  the

substantive  RICO offense,  and the  74 separate  ECT statute

counts.  Oreto,  Jr., and  Petrosino were also  named in  the

RICO conspiracy and RICO substantive counts  and in a limited

number  of  the 74  transactions  and  the corresponding  ECT

statute  conspiracy  counts.   All  three  of the  appellants

appeared in various of the 62 usurious loan transactions that

were also alleged predicate acts in  counts I and II but were

not charged as separate conspiracies or substantive crimes in

any other count.

     One  of  the  defendants  named in  the  indictment  was

severed and tried separately.  See United States v. Weiner, 3                                                                      

F.2d  17   (1st  Cir.   1993).    Several   other  defendants

disappeared from  the  case for  reasons  not stated  in  the

briefs;  at least  one pleaded  guilty and  testified against

those who stood  trial.   The three appellants  in this  case

were  tried  together  in a  143-day  trial.    At trial  the

government  offered seized  records  of loans  and borrowers,

court-authorized   wiretap   recordings,  and   testimony  by

                             -8-                                         -8-

cooperating  co-conspirators and individuals who had borrowed

money from Oreto, Sr.   We state the facts in the  light most

favorable  to verdicts being appealed.  Weiner, 3 F.2d at 19.                                                          

     So viewed,  the evidence permitted a  reasonable jury to

find the  following.  Oreto,  Sr. headed an  enterprise which

made loans to over three hundred borrowers at weekly interest

rates of from  three to  seven percent.   Those weekly  rates

translate  into annual interest  of from 156  to 364 percent;

the maximum legal rate  in Massachusetts, by contrast, is  20

percent  annually.  Mass. Gen.  Laws. ch. 271,    49.  Oreto,

Jr. and  Petrosino served as collectors  for the loansharking

operation.   Over two  dozen borrowers testified,  various of

them  asserting  that Oreto,  Sr.  and  his accomplices  used

threats and intimidation to ensure payment of the loans.

     The  loansharking business  was  conducted from  various

locations in or  near Revere including both Oreto, Sr.'s home

and a function hall in which Oreto, Sr. was a silent partner.

The documentary evidence included the organization's "Bible,"

its master  list of borrowers, debts,  salaries and expenses.

"Frank,  Jr.,"  and  "Dennis"  were listed  among  those  who

received weekly salaries.   Much of the trial was  given over

to testimony  by borrowers  whose loans were  corroborated by

entries in the Bible.

     These witnesses testified that Oreto, Sr. employed tall,

physically imposing men--Petrosino, for example, is described

                             -9-                                         -9-

in the  record as between  6'1" and  6'2" tall  and over  250

pounds  in  weight--to  call  upon  delinquent borrowers  and

threaten them--implicitly or  explicitly--with physical  harm

if  the  loans  were not  repaid.    At  least two  witnesses

testified that they were physically assaulted by Oreto, Sr.'s

collectors,  and  many  more borrowers  testified  that  they

believed that harm would come to them if they failed to  make

their payments.

     The jury convicted each  of the appellants on one  count

of conspiring to violate  RICO, 18 U.S.C.   1962(d),  as well

as  one  substantive RICO  count. 18  U.S.C.    1962(c).   In

addition, Oreto, Sr. was convicted on 35 counts of conspiring

to  collect loans by extortionate means, 18 U.S.C.   894; ten

counts of  making extortionate  loans, 18  U.S.C.    892; and

three  counts of conspiring to make  extortionate loans.  Id.                                                                         

The jury  also  convicted  Oreto, Jr.  on  four  counts,  and

Petrosino on seven counts, of conspiring to  collect loans by

extortionate means.      At  a  later  date, Oreto,  Sr.  was

sentenced to 20 years imprisonment on the RICO counts, to run

concurrently  with 15  year sentences  on the  individual ECT

statute counts  but consecutively to  a life sentence  he was

then serving in Massachusetts  state prison for second degree

murder.  Oreto, Jr.  and Petrosino were sentenced to  6 years

and  10 years  imprisonment, respectively,  on each  count of

                             -10-                                         -10-

conviction, with  all sentences  to run concurrently.   These

appeals followed.

                  II.  THE MISCONDUCT CLAIMS

     Appellants' first  argument on appeal is  that they were

prejudiced  by  prosecutorial  misconduct involving  in-court

identifications of them by a series of former borrowers.  The

first  indication of  such misconduct  occurred on  March 29,

1990--three months into  the trial--when an assistant  United

States attorney asked John  Doherty, a Revere fireman alleged

to have borrowed money  from Oreto, Sr., to make  an in-court

identification.    Doherty had  testified  that  a man  named

"Dennis"  had visited him on  one occasion at  work but, when

asked  to identify  Dennis,  Doherty  erroneously pointed  to

Oreto, Jr.

     On cross-examination, Doherty testified that he had been

told  prior to  entering  the courtroom  that the  government

wished  him  to  identify  Petrosino, and  that  the  seating

arrangement  of the  appellants at  their counsel  tables had

been described to him  by an FBI agent who had been assisting

the  prosecutors at  trial.   Doherty's confusion  appears to

have  arisen from  the  fact that  there  was more  than  one

defense table. Oreto, Jr. was sitting in the same position at

his table  as Petrosino--the second seat  from the right--but

at a different table.   The defense moved for a  mistrial and

requested a hearing on the issue.

                             -11-                                         -11-

     At a hearing beginning  on April 2, 1990, the  FBI agent

acknowledged that he had told Doherty the seating arrangement

of appellants  prior to  Doherty's entry into  the courtroom.

This was  done ostensibly  for  the purpose  of reducing  the

witnesses'   nervousness  by  familiarizing   them  with  the

courtroom  layout.   The  agent also  admitted conveying  the

seating  arrangement to two other  witnesses.  One was Joseph

Gazza,  who had  testified  prior to  Doherty and  identified

Oreto,  Sr., and  the  other was  Michael  DiCarlo, whom  the

government chose not to call.

     Two other  witnesses testified at the  hearing that they

had  known where  the defendants  would be  sitting:   Ronald

Filipowich, who  identified Oreto,  Sr., and  Frank Anderson,

who  identified both  Oreto,  Sr. and  Petrosino.   Anderson,

however, said  that he had  such knowledge  only because  his

experience  as a police officer,  and Filipowich said that he

knew  only that the defendants would be sitting in the "back"

of  the  courtroom.   Later on,  in  May 1990,  an additional

witness, Dennis Willcox, admitted that the FBI agent had told

him the  courtroom seating  arrangements two or  three months

earlier.    Willcox, however,  was  never  asked to  identify

anyone.

     Following   the  hearing,  the   district  court  denied

defendants' motions for a mistrial and instructed the jury as

follows:

                             -12-                                         -12-

     Four witnesses--Mr. John Doherty, Mr. Joseph Gazza,
     Mr.  Frank  Anderson,  Mr. Ronald  Filipowich--gave
     testimony in the  case before you.  Each  was asked
     to  identify Mr. Frank Oreto,  Sr., and each gave a
     reply.   Prior to that session  the Government team
     told Mr. Doherty, Mr.  Gazza, Mr. Anderson, and Mr.
     Filipowich   the   seating   arrangements  of   the
     defendants.   Now, you must be instructed as to the
     following:

     First, identification is  an essential element that
     the  Government  must  prove  beyond  a  reasonable
     doubt.

     2. You are to consider that evidence  that seeks to
     prove that, and you must carefully weigh the testi-
     mony in determining what weight you shall give that
     testimony as you review it in your deliberations.

     Suggestions as to identification may [a]ffect an in
     Court identification by making it the result of the
     suggestion  rather  than that  which  the witnesses
     actually saw or observed.   Your responsibility  is
     to determine  from all the evidence  whether or not
     the  identifications made  by  the  witnesses  were
     based on their own actual knowledge and memory, and
     not on information provided  them about the seating
     positions  of  the   defendants  provided  by   the
     Government.

     Therefore, you may consider  the fact that the Gov-
     ernment   told   the   witnesses  Doherty,   Gazza,
     Anderson,   and   Filipowich   about  the   seating
     arrangements of  the defendants, and of  Mr. Oreto,
     Sr.  in particular,  as you  go about  deciding how
     much weight and relevance you will give to those in
     Court identifications.

The  district court's  final charge  to  the jury  included a

similar  instruction.    The  court  rejected  the  defense's

objections  to  this  instruction,  as  well  as  alternative

instructions proffered by defense counsel. 

     Appellants  now contend  that  the government's  conduct

required a mistrial.   Ordinarily, we will reverse a district

                             -13-                                         -13-

court's  denial of a motion for  a mistrial only for an abuse

of discretion.  E.g., United States v. Castiello, 915 F.2d 1,                                                            

3 (1st Cir.  1990), cert. denied, 498 U.S. 1068  (1991).  The                                            

government assumes, solely for  purposes of this appeal, that

the   revelation  of  defendants'   seating  arrangements  to

identification witnesses  was improper.  It  argues, however,

that there was no prejudice to any of the appellants.

     We think this assertion  is clearly correct with respect

to Oreto, Jr., who was not identified by any of the witnesses

who  were told  of the  seating arrangement.   It  is equally

evident  that  Petrosino  was  not harmed  by  the  allegedly

"staged"  identifications:    Doherty's misidentification  of

Oreto,  Jr.  as  Petrosino   can  have  only  undermined  the

government's case against Petrosino.  The only other disputed

identification   of   Petrosino--by   Anderson--occurred   in

connection  with  a  count   upon  which  Petrosino  was  not

convicted.

     The identifications  of Oreto,  Sr.  present a  slightly

more difficult problem.   Four of  the five arguably  tainted

witnesses pointed out Oreto, Sr. for the jury, and Oreto, Sr.

was  convicted on  three of  the four  counts to  which those

witnesses  testified.   This  court must  therefore determine

whether  the  identification   procedure  was   impermissibly

suggestive,  and, if  so,  whether the  identifications  were

nonetheless reliable  under all of the  circumstances.  E.g.,                                                                        

                             -14-                                         -14-

United States v. Gray, 958 F.2d 9, 13-14 (1st Cir. 1992).  On                                 

the  latter issue,  we conclude  that the  identifications of

Oreto, Sr.  made were sufficiently reliable  and the curative

instructions were such that a mistrial was not required.

     This is not a case  in which a marginal identification--

e.g., by a  witness who  only glimpses the  perpetrator of  a                

crime--has   been   bolstered   by    improperly   suggestive

identification  procedures.   See Neil  v. Biggers,  409 U.S.                                                              

188, 199-200 (1972).   Here, the witnesses identifying Oreto,

Sr.  had dealt with him on numerous occasions and without any

attempt by Oreto, Sr.  to mask his identity.   These dealings

were  corroborated  by  documents seized  by  the government.

Indeed, Oreto, Sr. did  not claim that someone else  had made

the loans in question, but rather that those transactions had

never involved threats or violence.  Finally, defense counsel

were given ample  opportunity to explore  the defects in  the

identification procedure on cross-examination and argue those

defects to the jury in summation.

     Appellants also assert that  the trial court  improperly

foreclosed   inquiry  into  "continuing   misconduct  in  the

identification  process" by  the  government.   Specifically,

they argue that the court should have ordered Doherty, Gazza,

Anderson, and  Filipowich to  return to  the stand  after the

hearing  in order  to  determine whether  any  part of  their

testimony remained untainted.  Appellants do not explain what

                             -15-                                         -15-

they  would have  asked these  witnesses during  such further

testimony,  over  and  above  the  thorough cross-examination

conducted during the witnesses' initial testimony.

     One  assistant United  States attorney testified  at the

April  2   hearing.    Appellants  complain   that  a  second

prosecutor, who was co-counsel at the trial, should have been

ordered  to testify.   This  testimony appears  to  have been

sought only to clarify certain details as to what information

was given to which  witnesses.  The government has  asked us,

as  it asked the trial court, to resolve all of these ambigu-

ities  in  the defense's  favor  and  assume  that each  such

witness  was  told  exactly  where each  defendant  would  be

sitting.  The additional testimony sought by appellants could

not have given them more.

      Appellants  next  say  that  the   similar  wording  in

testimony  given  by  several  witnesses  regarding the  fear

element of the extortion counts may have indicated additional

government "coaching" of witnesses,  and that the trial court

frustrated efforts to inquire  into such misconduct.  Several

of  the witnesses testified that they feared that "harm would

come  to them" if they did not repay their loans.  Appellants

say that this syntax as unnatural, suggesting that its source

lay with the prosecution rather than the natural recollection

of the witnesses involved.

                             -16-                                         -16-

     A  number  of other  witnesses testified  using entirely

different  formulations,  and  the  fear  element  was  amply

supported by additional evidence.   Debtor Lloyd Plotkin, for

example,  stated  in an  intercepted  conversation with  John

Costa, a manager  in the loanshark organization,  that he was

"afraid" of being "hit" and "slapped" by Oreto, Sr.  Similar-

ly,  other debtors testified at  trial that violent means had

actually been  employed  against them.   The  defense had  an

adequate  opportunity  on  cross-examination to  explore  any

misconduct that might discredit the witnesses, and no further

fishing expedition was required.

     The appellants also complain  that they were not allowed

to call the assistant United States attorneys trying the case

as  trial  witnesses  to  testify  about  misconduct  in  the

identification  process.    A  defendant   must  establish  a

"compelling need"  before being allowed to  call a prosecutor

as  a trial  witness, a  step that  will usually  require the

prosecutor to step aside.  United States v. Angiulo, 897 F.2d                                                               

1169, 1194 (1st  Cir.), cert.  denied, 498  U.S. 845  (1990).                                                 

Here,  the court  dealt with  the suggestive  identifications

through the hearing and instructions.  We think that this was

sufficient.1

                                                    

     1When the  prosecutor testified at the  April 2 hearing,
he disclosed that Doherty  had described the individual named
"Dennis"  who visited  him at  work--allegedly, Petrosino--as
large,  dark-haired and  "Irish  looking."   Petrosino argues
that  the government violated Brady  v. Maryland, 373 U.S. 83                                                            

                             -17-                                         -17-

     Appellants   further  contend   that,  in   his  closing

arguments  to the  jury, one  of the  prosecutors effectively

testified  himself by  saying,  as to  the tainted  identifi-

cations,  "Nobody  attempted  to  cover  it  up,  ladies  and

gentlemen.  Nobody lied."  This was mild vouching, but we see

the statement as essentially harmless, especially in light of

the  defense's  repeated  attempts  to  magnify  the  alleged

government misconduct  and  make it  the focus  of the  case.

Reversal is not automatically required where improper remarks

by prosecutor are isolated  and made in response  to specific

attacks by  defense counsel.   United States  v. Machor,  879                                                                   

F.2d  945, 956 (1st Cir.  1989), cert. denied,  493 U.S. 1081                                                         

(1990).

     At the close of the  evidence, the defense proffered two

proposed  instructions  to  be   given  by  the  trial  court

regarding   government   misconduct  in   the  identification

process.  The first of these stated in part as follows:

     It is improper for the government to tell a witness
     where a defendant  is sitting in the  courtroom.  I
     have found that such  conduct occurred here on four
     specific occasion,  affecting the testimony  of Mr.
     Doherty,   Mr.   Gazza,   Mr.   Anderson   and  Mr.
     Filipowich.   I now  instruct you that  attempts by
     "the Government team" .  . . to conceal or  make up
     evidence,  or  to  influence  witnesses  to testify
     favorably to the  government, may be considered  by

                                                    

(1963), by failing to disclose Doherty's prior description to
the defense (so  it could  point out that  Petrosino did  not
look Irish).   We agree with  the district court that  in the
context of  this case  the supposed characterization  was too
vague to qualify as exculpatory under Brady.                                                       

                             -18-                                         -18-

     you as reflecting an  attempt to unfairly convict a
     defendant.

     . . . .

     You must consider the  number and extent of efforts
     to change or influence witnesses' testimony.  To do
     this, you must evaluate  the testimony of each wit-
     ness in this case,  deciding whether any  tampering
     may have affected each and every  identification as
     well as  any other evidence  you have heard  or re-
     viewed  during   the  trial.     Evidence  of  such
     tampering alone  may create  a reasonable  doubt of
     the defendant's guilt.

A second proposed instruction concluded by stating that "[i]f

such  government misconduct  together  with  any other  facts

adduced in support  of this  defense creates in  your mind  a

reasonable doubt  of guilt  of these  charges, then you  must

find the defendants not guilty of these charges."

     Both of  the proposed  instructions invited the  jury to

acquit the defendants  primarily or  solely on  the basis  of

misconduct  by the government.   Here, as in  an earlier case

"[the] facts making  up the theory, if  believed, [would] not

defeat the factual theory of the prosecution."  United States                                                                         

v. Silvestri, 790 F.2d 186, 192 (1st Cir.), cert. denied, 479                                                                    

U.S.  857 (1986).    Putting the  government  on trial  is  a

favorite strategy  of  defense  counsel, but  it  is  not  an

exculpatory theory which the defense is entitled  to have the

judge formally present  to the  jury.  See  United States  v.                                                                     

Porter, 764 F.2d 1, 14 (1st Cir. 1985).                    

             III.  THE MERITS AND RELATED ISSUES

                             -19-                                         -19-

     Our discussion of the merits begins with the ECT statute

counts which,  although listed later in  the indictment, were

incorporated in the RICO  counts as potential predicate acts.

Most   of   the  ECT   statute   counts  charged   individual

conspiracies either to make extortionate extensions of credit

or  to   collect  such  extensions  by   extortionate  means.

Appellants now  claim that  they were improperly  charged and

convicted of multiple  ECT statute  conspiracies, whereas  in

reality  there were  no distinct  agreements separate  from a

single overall loansharking conspiracy.

     We have said that "[w]hether a given body of evidence is

indicative of  a single conspiracy, multiple conspiracies, or

no conspiracy at all is ordinarily a matter of fact."  United                                                                         

States  v. David, 940 F.2d 722, 732 (1st Cir.), cert. denied,                                                                        

112 S. Ct. 605 (1991).  It is true that if no reasonable jury

could  on   the   evidence  presented   find   the   multiple

conspiracies charged,  then a judgment of  acquittal would be

warranted.  It is a "heavy burden" to show that the  evidence

precludes  the findings made by  the jury.   United States v.                                                                      

Innamorati, 996 F.2d  456, 469 (1st Cir.), cert.  denied, 114                                                                    

S. Ct. 409 (1993).  Appellants  here do not even try to carry

that burden.

     Much of  the trial  was consumed by  government evidence

directed to  individual transactions.   The appellants' brief

does  no more  with the  evidence than  point  to connections

                             -20-                                         -20-

between  the credit  transactions,  including  similarity  of

methods,  overlap of  personnel,  a general  time frame,  and

common  locations.   These factors  might have  justified the

jury  in finding only one large conspiracy.  They hardly show

that  the  jury could  not  find  the requisites  of  smaller

individual  conspiracies:    a specific  agreement,  and  the

required intent, as to each loan transaction.

     The   appellants'  brief   quotes  from   statements  by

government  counsel to  the jury,  arguing that  the evidence

shows the connections necessary to prove the overarching RICO

conspiracy  charged in count 1.   But the  requirements for a

RICO conspiracy are different than the requirements for a ECT

statute conspiracy,  whether the  latter relates to  a single

transaction or  one that  embraces a number  of transactions.

Here  there is  no  inconsistency in  the government  arguing

that--in  addition to  the  RICO  conspiracy--individual  ECT

statute conspiracies have also been proved.

     The second  branch of appellants'  multiplicity argument

is an attack on  the jury instructions.  Appellants  say that

even  if  the  evidence   permitted  a  finding  of  separate

conspiracies, the  defense was entitled to  instructions that

set  forth the defense theory  that there was  (at most) only

one ECT statute conspiracy.  Further, they say, the court was

obliged  to give the jury guidance,  as reflected in proposed

defense instructions, on how to distinguish between one large

                             -21-                                         -21-

conspiracy and several smaller ones.  The two instructions in

question--numbers  12A and  23--are lengthy  and overlapping;

the former is concerned with RICO and the latter with the ECT

statute.  The district court gave neither.

     In substance,  each of  the requested instructions  asks

the  jury   to  determine   "whether  two  or   more  charged

conspiracies are really the same offense"; both set forth the

multiple  factor test that this and other courts have used in

considering double jeopardy claims in the conspiracy context;

and  both refer to the  possibility that the  jury could find

"that the  multiple conspiracies  charged  in the  indictment

were not  separate and  distinct."   One of  the instructions

cited United States  v. Gomes-Pabon, 911  F.2d 847, 860  (1st                                               

Cir.), cert.  denied, 498  U.S. 1074 (1991),  which discussed                                

the multi-factor test.

     It is common practice, especially in drug cases, for the

government (because  of  various procedural  advantages  that

inhere)  to charge a single  large conspiracy.   In turn, the

defendants often  claim that,  at worst, only  smaller (often

uncharged)  conspiracies  existed.    Where  requested, trial

courts  may  then  give  a  so-called  multiple  conspiracies

charge, inviting  the jury  to consider the  possibility that

the large  conspiracy has  not been  proved but  instead that

only smaller conspiracies may have been shown.  1 L. Sand, J.

Siffert,  W.  Loughlin  &amp;   S.  Reiss,  Modern  Federal  Jury                                                                         

                             -22-                                         -22-

Instructions     19-01,  at 19-24  to  19-34.3  (1993).   See                                                                         

generally Kotteakos  v. United  States, 328 U.S.  750, 773-74                                                  

(1946).

     By  contrast, we  are  concerned here  with the  defense

proposing an  instruction that  contemplates a larger  single

conspiracy.  The government thinks that it is enough, in this

case,  that the jury was  properly instructed on the elements

of  each  type  of   conspiracy  charged  (namely,  the  RICO

conspiracy and  the  various ECT  statute conspiracies),  and

that  the jury  was also told  to acquit  if it  found that a

conspiracy  as charged had not  been proved.   It quotes from

the district court's instructions:

          If you find that any defendant participated in
     a  conspiracy  but  it  was  different  from  those
     charged in the indictment, that determination would
     provide  no basis for finding that defendant guilty
     of the offense charged.

          If  you find that  the conspiracy  charged did
     not exist,  then you must  return a verdict  of not
     guilty  even  though  you  find  that  some   other
     conspiracy did, in fact, exist.

The   government  concludes  that   "[i]f  an  individualized

conspiracy  is established,  it is  not a  legitimate defense

that the defendant engaged  in a broader conspiracy involving

multiple victims."

     This position  has some appeal, but it does not entirely

meet  the reality that a  jury's choice may  be influenced by

the alternatives presented.   Thus, "[a]n accused is entitled

to  an instruction on  his theory of  defense so  long as the

                             -23-                                         -23-

theory is a valid one and there is evidence in  the record to

support it."  United  States v. Rodriguez, 858 F.2d  809 (1st                                                     

Cir. 1988).   Similarly, a defendant has a right  to a lesser

included offense  charge, where  the evidence would  permit a

jury to  find that only  a lesser included  offense occurred.

E.g., Keeble v. United States, 412 U.S.  205 (1973).  If such                                         

instructions  were warranted  but  nevertheless  omitted,  it

would not be  an answer  to say that  the jury convicted  and

that the evidence was sufficient to support the conviction.

     The question what a  district court should tell  a jury,

where multiple conspiracies are charged but the defense urges

a single large conspiracy, is a difficult one and is probably

not susceptible  to an abstract answer  unrelated to context.

One  reason  is  that   quite  different  situations  may  be

presented:    for   example,  the  colorable  "single   large

conspiracy" might in one case be an entirely different entity

with  different actors  and  objectives and,  in another,  be

nothing more  than a  different characterization of  the very

same acts charged  as multiple conspiracies.   In the  former

case,  the charge in the two indented paragraphs quoted above

would probably protect the defendants pretty effectively even

without a specific reference to a "single" conspiracy.  

     Our situation is more akin to the latter case.  At best,

the defendants have engaged in a series of  transactions that

could be viewed  as a  set of separate  conspiracies, or  one

                             -24-                                         -24-

overall conspiracy embracing numerous  wrongful transactions,

or (putting  double  jeopardy issues  to  one side)  both  an                                                                     

overarching  conspiracy  and  a  nest  of  underlying smaller

conspiracies.    Partly  this  is  a  problem  of  proof  and

inference; partly  the problem arises from  trying to squeeze

into the  conceptual cubbyhole  of "an  agreement" activities

that  in practice often have  the more shapeless character of

an evolving joint criminal enterprise.  See  United States v.                                                                      

Sepulveda, 15  F.3d 1161, 1191 (1st Cir. 1993), cert. denied,                                                                        

114  S. Ct.  2714 (1994);  United States  v. Moran,  984 F.2d                                                              

1299, 1300 (1st Cir. 1993).

     In all  events, in such a  case as ours we  do not think

that  a defendant--even  if  arguably entitled  to a  "single                                   

conspiracy"  instruction--is  entitled  to  what  the defense

sought here, namely, a direction to the jury to acquit  if it

finds  that the "two or  more charged conspiracies are really

the same offense."  If  the various charged conspiracies  are

really  parts  of  the same  conspiracy,  then  at  worst the                                       

defendant  has  been  charged twice  or  more  with the  same

offense  and can be convicted (or at least punished) only for

one conspiracy.   Cf. Ball  v. United States,  470 U.S.  856,                                                        

864-65  (1985).  An outright acquittal on all counts would be

miscarriage of justice.

     Both of  the instructions sought  here are fundamentally

flawed  because they sought a direction to the jury to acquit

                             -25-                                         -25-

if it  found a single  conspiracy.  The law  is well settled,

and  for rather obvious  reasons, that the  district judge is

not required to edit a proposed instruction to delete the bad

and preserve the good.   United States v. Flaherty,  668 F.2d                                                              

566 (1st Cir. 1981); United States v. Leaching, 427 F.2d 1107                                                          

(1st  Cir. 1970).  Rather,  to preserve an  ordinary claim of

error based on  the refusal to  give an instruction,  counsel

must proffer  a substantially  correct statement of  the law.

The acquittal direction alone makes the  defense instructions

improper in the context of this case.

     The request  for a  "single  conspiracy" instruction  is

likely to be rare.  Usually, as already noted, the government

presses this theory and the defense resists; it was sought by

the defense here because  the defense thought (mistakenly, as

we explain below) that a single conspiracy would insulate the

defendants against a RICO  conviction.  Accordingly, we think

that  we can  properly  put  off  to  another  day  the  very

difficult problem  of deciding whether and when such a single

conspiracy  instruction should  be given,  a  problem fraught

with practical difficulties in explaining matters to the jury

as well as the theoretical ones to which we have adverted.

     One  other general  claim of error  relating to  the ECT

statute counts remains to  be considered.  In order  to prove

that an extension of credit was extortionate under  18 U.S.C.

   892, the government was obligated to prove that the debtor

                             -26-                                         -26-

(as  well as the defendant)  believed that the  debt might be

collected,   or  that  nonpayment   might  be   punished,  by

extortionate  means, that  is, by  violence or  other harmful

criminal  means.   18  U.S.C.    891(b).   This  element  was

contested at trial.  Over  defense objection, the trial court

allowed one of the alleged loanshark borrowers, Joe Gazza, to

testify that he knew Oreto, Sr. "got out of jail for murder."

     This  testimony  was  elicited  by   the  government  on

redirect,  after Gazza admitted  on cross-examination that he

had  never  been  directly  threatened.    The  redirect  was

admitted by the trial court solely for the purpose of showing

a basis for  Gazza's fears  that Oreto, Sr.  might resort  to

violence to  ensure repayment.  Appellants  now challenge the

trial court's  admission of the testimony,  noting its highly

prejudicial nature and the lack of any connection between the

prior   murder  and   Oreto,   Sr.'s   alleged   loansharking

activities.

     Appellants'  argument  is   largely  foreclosed  by  our

decision in United  States v.  DeVincent, 546  F.2d 452  (1st                                                    

Cir.  1976).  In  that case, which  also involved allegations

that the defendant made  extortionate extensions of credit in

violation  of 18  U.S.C.     892,  the trial  court  admitted

testimony    regarding   the    defendant's   twenty-year-old

conviction  for armed  robbery  and his  ten-year-old  murder

indictment.  Upholding this decision, Judge Coffin explained:

                             -27-                                         -27-

     Neither  of the  events could  be admitted  to show
     that  DeVincent was  a bad  man.   If known  to the
     debtor, however,  they can  be admitted to  show an
     element  of the  crime--the  understanding  of  the
     debtor   that  default   would  be   punished  with
     violence.   The debtor's awareness of  the lender's
     earlier  conviction,  or  even  indictment,  for  a
     violent  crime  surely  affects  his  view  of  the
     lender's likely collection practices.

546 F.2d at 456-57.

     DeVincent clearly  holds that  a prior conviction  for a                          

violent crime--even one  wholly unrelated to the  defendant's

lending activities--may, if known  to a debtor, influence the

latter's  reasonable expectations  as to  how the  lender may

collect the  loan.  It  is true  that the ECT  statute itself

permits   reputation   evidence--usually  a   reputation  for

violence--in more  restricted situations.   See 18  U.S.C.                                                              

892(c), 894(c).   But these provisions do  not explicitly bar

evidence of specific prior bad acts, as permitted  under Fed.

R.  Evid.  404(b),  when offered  to  show  the  basis for  a

victim's fear, and cases besides DeVincent have followed that                                                      

course.  The weighing of prejudice against probative value is

otherwise largely for the trial court, see Fed. R. Evid. 403,                                                      

and no abuse of discretion has been shown here.

     We  next consider  several general  attacks on  the RICO

convictions.   The  RICO statute  makes it  a crime  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,

                             -28-                                         -28-

in the conduct of such enterprise's affairs through a pattern

of racketeering activity or collection of unlawful debt."  18

U.S.C.    1962(c).   The  district court  gave the  following

instruction on the meaning  of "conduct or participate .  . .

in the conduct of" an enterprise under the statute:

     The term "conduct" and the term "participate in the
     conduct  of" an enterprise  include the performance
     of acts, functions or duties which are necessary to
     or helpful in  the operation of the  enterprise.  A
     person may be found to conduct or to participate in
     the conduct of  an enterprise even  though he is  a
     mere employee  having no part in  the management or
     control of the enterprise and no share in the prof-
     its.

     In Reves v.  Ernst &amp; Young, 113 S. Ct.  1163 (1993), the                                           

Supreme Court  held that an outside  accounting firm employed

by an  enterprise was  not  subject to  civil RICO  liability

unless it  "participate[d] in the operation  or management of

the  enterprise itself."   Id.  at 1173.   Relying  on Reves,                                                                        

Oreto,  Jr.  and Petrosino  argue  that  "mere employees"  by

definition do  not participate  in the "operation  or manage-

ment" of the enterprise.  It  is true that in Reves the Court                                                               

expressly declined to decide "how far    1962(c) extends down

the ladder of operations." 113 S. Ct. at  1173 n.9.  Further,

the  Court   observed  that  "some  part   in  directing  the                                              

enterprise's affairs is required." Id. at 1170.                                                  

     Reves is a case about the liability of outsiders who may                                                                 

assist the enterprise's affairs.  Special care is required in

translating  Reves'  concern with  "horizontal" connections--                              

                             -29-                                         -29-

focusing  on the  liability of  an outside  adviser--into the

"vertical"  question of  how  far RICO  liability may  extend

within the enterprise but down the organizational ladder.  In

our view, the reason the accountants were not liable in Reves                                                                         

is  that,   while  they  were  undeniably   involved  in  the

enterprise's decisions, they neither made those decisions nor

carried  them  out;  in  other words,  the  accountants  were

outside the  chain of command through  which the enterprise's

affairs were conducted.

     The government did not show that Oreto, Jr. or Petrosino

participated in the enterprise's decisionmaking; but they and

other collectors  were plainly  integral to carrying  out the

collection process.  Reves  defines "participate" as "to take                                      

part in,"  113 S.  Ct. at  1170, and  nothing in  the Court's

opinion precludes our holding that one may "take part in" the

conduct of an enterprise by knowingly implementing decisions,

as well as by making them.  Indeed, the Court said that "[a]n

enterprise  is `operated'  not just  by upper  management but

also  by lower-rung  participants in  the enterprise  who are

under  the direction of upper management." 113 S. Ct. at 1173                                

(emphasis added).

     Congress declared in RICO that the statutory purpose was

"to seek  the eradication  of organized  crime in  the United

States" and  Congress listed "loan  sharking" as  a means  by

which  "organized crime derives much of its power."  See Pub.                                                                    

                             -30-                                         -30-

L. 91-452,   1  (Statement of Findings and  Purpose following

18  U.S. C.     1961).   RICO  also provides  expressly  that

"collection  of  unlawful  debt"  is  a  predicate  for  RICO

liability.   This  conduct is  precisely what  the government

charged,  and the jury found,  was engaged in  by the present

appellants.   We  think  Congress intended  to reach  all who

participate in  the conduct of that  enterprise, whether they

are generals or foot soldiers.2

     Appellants have  also challenged a second  aspect of the

RICO  instructions.     A  defendant  may   violate  RICO  by

participating  in either a "pattern of racketeering activity"

or "collection of unlawful debt."  18 U.S.C.    1962(c).  The

racketeering prong of the statute requires, at a minimum, "at

least two  acts of racketeering activity . . . ." 18 U.S.C.  

1961(5).  In this  case, the predicate acts specified  in the

indictment against Oreto, Jr. and Petrosino were conspiracies

to  collect   individual  loans  by   extortionate  means  in

violation  of 18 U.S.C.    894.   See 18 U.S.C.    1961(1)(B)                                                 

(specifying  violations  of  18  U.S.C.     891-94  as  valid

predicate acts under RICO).

                                                    

     2Appellants  also  claim  prejudice  from  the  district
court's   failure   to  complete   its  explanation   of  the
"association with or employment by the enterprise" element of
   1962(c)  after  an  interruption.    Appellants  have  not
explained how  they  were  harmed  by the  omission  and  the
language apparently omitted would have been primarily helpful
to the government.

                             -31-                                         -31-

     Appellants  objected  to the  trial  court's instruction

that the jury  could find a pattern of  racketeering activity

if  the  appellants  committed   or  aided  and  abetted  the                                               

commission  of at  least  two of  the specified  racketeering

acts.   Our court has observed that "[a]iding and abetting is

an  alternative charge  in every  count, whether  explicit or

implicit,"  United States v. Sanchez,  917 F.2d 607, 611 (1st                                                

Cir. 1990) (internal  quotations omitted), cert. denied,  499                                                                   

U.S. 977 (1991), and it  appears that most if not all  courts

to  consider  the issue  have held  that  a defendant  may be

convicted  of aiding and  abetting a conspiracy.   See, e.g.,                                                                        

United States  v. Gonzalez,  933 F.2d  417, 444-45  (7th Cir.                                      

1991);  United States  v. Portac, Inc.,  869 F.2d  1288, 1293                                                  

(9th Cir. 1989), cert. denied, 498 U.S. 845 (1990).                                         

     Oreto, Jr.  and Petrosino also argue  that because there

was  only a  single  ECT statute  conspiracy involving  these

appellants, the government failed  to prove the two predicate                                                               

acts  necessary for a pattern  of racketeering.   18 U.S.C.  

1961(5).  Contrary to appellants' hopes we do not see why the

possibility of  a single  ECT statute conspiracy  (and it  is

only that) should  infect the RICO convictions.   Quite apart

from other possible answers,  we think it is enough  that the

specific  ECT statute conspiracies  charged as predicate acts

of  racketeering   were  each  also   conspiracies  to   make                                               

extortionate loans or collect loans by extortionate means.

                             -32-                                         -32-

     This  court has already held in Weiner that one such ECT                                                       

statute conspiracy is enough for a RICO violation because the

pattern  requirement  does not  apply  to  the collection  of

unlawful  debt.   Even if the  jury had  convicted only  on a

single ECT statute  conspiracy, the one charged  in this case

happens to suffice under  the alternative prong of RICO.   18

U.S.C.    1962(c).   We  need not  consider whether  a single

conspiracy shown to have embraced multiple acts of wrongdoing

might also satisfy the racketeering prong where unlawful debt

was  not involved so that at least two racketeering acts were

required.

     Confronting   Weiner   appellants    argue   that    our                                     

construction of section 1962(c) in Weiner renders the statute                                                     

unconstitutional.  They say that requiring two predicate acts

for  one theory  of liability  but only  one for  a different

theory  violates  the  equal  protection  clause,  apparently

because one defendant may be  found guilty more readily  than

another under  the same  statute.  The  statutory distinction

employs no suspect classification  nor burdens a  fundamental

right,  so we  must uphold  the statute  if the  disparity is

"rationally  related  to  the  State's  objective."    Harrah                                                                         

Independent  School District  v.  Martin, 440  U.S. 194,  199                                                    

(1979) (per curiam).

     Congress could rationally  have decided that collections

of unlawful debt were central to  the evils at which RICO was

                             -33-                                         -33-

directed.   Accordingly, it  could rationally have  chosen to

make guilt more  easily provable in unlawful debt  cases than

in  cases involving  other  forms of  racketeering  activity.

Whether  this rationale  was  the actual  motivation for  the

statutory  distinction is  irrelevant  to  our  inquiry,  see                                                                         

Minnesota  v. Clover  Leaf  Creamery Co.,  449 U.S.  456, 466                                                    

(1981),  although Congress'  statement  of  purposes  (quoted

above) gives  some  reason to  believe that  Congress did  so

reason.

     A due process argument advanced by appellants is equally

without merit.   In essence,  they appear to  argue that  the

"continuity  plus relationship"  test for  a  "pattern" under

section   1962(c)   is  so   inherently   vague   as  to   be

unconstitutional.   We rejected a similar  argument in United                                                                         

States v.  Angiulo, 897 F.2d  1169, 1179-80 (1st  Cir. 1990),                              

holding that any vagueness  challenge to section 1962(c) must

show "that the meaning and scope of  RICO's `pattern' element

was unclear  and vague" as applied to the defendants' conduct

in the particular case.   The appellants in the  present case

have not even attempted such a demonstration.  

     Oreto, Jr. and Petrosino  each challenge the sufficiency

of  the  evidence to  support  their  convictions on  various

counts of the indictment.  Oreto, Jr. contends that there was

insufficient evidence  to support the  jury's guilty verdicts

both  on the four counts  of conspiracy to collect extensions

                             -34-                                         -34-

of credit by extortionate means, 18 U.S.C.   894,  and on the

RICO counts.  He argues that the first two conspiracy counts-

-counts  10 and  14  of the  indictment--cannot be  sustained

because  neither of  the  alleged victims  testified and  the

government  failed to  identify the  voices on  wiretap tapes

used to secure the convictions.

     As to the wiretaps, both FBI Special Agent Gianturco and

Massachusetts State Trooper  Thomas Foley testified to  their

familiarity with  the voices  in question and  identified the

speakers on the  tapes for  the jury.   Further, the  illegal

loans  to Mario Singarella (count 10) and Gary Plotkin (count

14)  were   corroborated,  by  documentary  evidence  in  the

loanshark organization's 'Bible'; Daniel Forte, a cooperating

co-conspirator,  testified  at  trial   as  to  Oreto,  Jr.'s

involvement in  efforts to collect  each loan.   The evidence

was more than sufficient.

     Oreto, Jr. challenges his conviction on count  67 of the

indictment,  involving extortionate  collection of a  loan to

Joseph Brangiforte, on the  ground that Brangiforte failed to

identify  Oreto, Jr. as the person Brangiforte repaid.  There

was  ample  other  evidence,  however, that  Oreto,  Jr.  was

involved with the  Brangiforte loan:   Brangiforte  testified

that he made a payment to Oreto, Jr. near the Wonderland MBTA

station;  the  government   produced  wiretap  recordings  of

Brangiforte and  Oreto, Jr. discussing the  loan; and Trooper

                             -35-                                         -35-

Foley testified that  he saw Brangiforte  give Oreto, Jr.  an

envelope.  Again, the evidence was sufficient.  Brangiforte's

inability  to pick out Oreto, Jr. in the courtroom was fodder

for  jury argument,  but  is  not  in  itself  fatal  to  the

conviction.   See United States  v. Doherty, 867  F.2d 47, 67                                                       

(1st Cir.), cert. denied, 492 U.S. 918 (1989).                                    

     Oreto,  Jr.'s challenge  to count  16 presents  a closer

question.   That count involved extortionate  collection of a

loan to  Eleanor Kelley, and Oreto, Jr. claims his conviction

was  improper because  "[t]here was  simply no  evidence that

Eleanor Kelley .  . . was in fear."   The debtor's subjective

fear is not itself an element of the offense  under 18 U.S.C.

  894, although actual fear may be pertinent evidence.  "[I]t

is the nature of the actions of the person seeking to collect

the  indebtedness,  not  the  mental state  produced  in  the

debtor,  that  is the  focus of  the  inquiry for  the jury."

United States  v.  Polizzi, 801  F.2d  1543, 1548  (9th  Cir.                                      

1986).  See generally 1 Sand, supra,   32.02, at 32-16.1.                                               

     Here, the  government offered  evidence that Oreto,  Jr.

and  two  other strangers  visited  Kelley  at  her place  of

business in order to  ask Kelley to contact Oreto,  Sr. about

the  loan.  The government  also showed that  the loan itself

was grossly usurious.  After a reading of the testimony as to

the visit,  we think that  a reasonable jury  could determine

that  the  nature of  the loan,  its  interest rate,  and the

                             -36-                                         -36-

appellants' collection methods were  not of the sort commonly

employed by  legitimate  lenders, and  that  the  appellants'

tactics carried an implicit threat of violence.

     Oreto,  Jr. also  argues that  the government  failed to

demonstrate  that  he  "participated  in  the  management  or

control of  the alleged enterprise" because  the proof showed

only that  he "was  a mere collector  for a  short period  of

time."   There  is no  requirement that  participation extend

over  a long period.   Here, the evidence  showed that Oreto,

Jr. was directly  involved in at  least four transactions  in

connection  with his  father's loansharking enterprise.   The

evidence is  sufficient to sustain both  the substantive RICO

and RICO conspiracy convictions.

     Petrosino  also  challenges  his  RICO   convictions  on

evidentiary  grounds, contending  that the  government proved

only that he was "a collector paid $50 weekly for a bare five

months"  and  that  this  is  insufficient  to show  that  he

"participated   in  the   operation  or  management   of  the

enterprise  itself."   The  statute requires  neither that  a

defendant share  in the enterprise's profits  nor participate

for  an extended period of time, so long as the predicate act

requirement is met.  Petrosino participated in the collection

of seven separate loans by extortionate means.  Those actions

are sufficient.

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     Lastly, appellants objected  at trial  to the  following

instruction given by the trial court to define the concept of

"reasonable doubt":

     A  reasonable doubt  is  a real  doubt, based  upon
     reason and common sense after careful and impartial
     consideration of all  the evidence in the  case.  A
     reasonable  doubt does not  mean beyond  all doubt.
     Rather it means a doubt based upon reason.

Appellants' challenge rests upon the Supreme Court's decision

in  Cage  v. Louisiana,  498 U.S.  39  (1990), which  held to                                  

equate  reasonable doubt with  an "actual  substantial doubt"

was constitutionally  inadequate.  Arguing  that "real doubt"

in  the  present instruction  is  equivalent to  "substantial

doubt," appellants  now argue that their  convictions must be

reversed due  to the  faulty  instruction.   See Sullivan  v.                                                                     

Louisiana, 113  S. Ct. 2078 (1993)  (erroneous instruction on                     

reasonable doubt cannot be harmless error).

     The objection to the  phrase "substantial doubt" is that

it is ambiguous.  If taken to  mean "large" or something like

it, the instruction may mislead the jury into thinking that a

small but reasonable doubt  is no bar to conviction.  But the

phrase would be  "unexceptionable" if taken to mean  that the

doubt  must  be  "something  more than  a  speculative  one."

Victor v. Nebraska,  114 S. Ct. 1239, 1250 (1994).   The term                              

used  here, "real," is not subject to the same ambiguity; its

natural antonym is "unreal"  or" imaginary," which are proper

descriptions of what would not be a reasonable doubt.  Id. at                                                                      

                             -38-                                         -38-

1250.    Boilerplate might  be preferable,  but there  was no

error.

     Affirmed.                         

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