
USCA1 Opinion

	




          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            _________________                                           ______        &  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  &   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 & 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.                                         -37-                                         -37-                 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.                 ________                                         -39-                                         -39-
