16-3497(L)
Ruocco v. Hemmerdinger

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of October, two thousand seventeen.

Present:
            GUIDO CALABRESI
            DEBRA ANN LIVINGSTON,
                    Circuit Judges,
            JED S. RAKOFF,
                    District Judge.*
_____________________________________

FRANK M. RUOCCO, JR., BORIS A. TOMICIC,

                         Defendants-Appellants,

WILLIAM S. MCCAMBRIDGE, EARTH TECHNOLOGY,
INC., RECYCLE TECHNOLOGY, LLC,

              Defendants,

                v.                                                      16-3497; 16-3499

HEMMERDINGER CORPORATION, DBA ATCO,

                  Plaintiff-Appellee.
_____________________________________


*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Defendant-Appellants:                  ROBERT M. CASALE, Law Offices of Robert M. Casale,
                                           Guilford, CT (Wesley R. Mead, Astoria, NY, on the
                                           brief)

For Plaintiff-Appellee:                    BALESTRIERE FARIELLO, New York, NY


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendants-Appellants Frank M. Ruocco, Jr. (“Ruocco”) and Boris A. Tomicic

(“Tomicic”) appeal from a June 6, 2016 judgment of the United States District Court for the

Eastern District of New York (Kuntz, J.) in favor of Plaintiff-Appellee Hemmerdinger

Corporation, DBA ATCO (“Hemmerdinger”), entered after a jury trial, and also from the

September 19, 2016 denial of Ruocco and Tomicic’s post-trial motions for judgment as a matter

of law or a new trial. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       In the early 2000s, Hemmerdinger hired a general contractor to redevelop an industrial

park that it owned into a shopping mall. The general contractor hired sub-contractor Earth

Technology, Inc. (“ETI”) to excavate the soil underlying the site. Under the terms of ETI’s

contract, Hemmerdinger would compensate ETI for all costs associated with the project, plus

15%. ETI soon learned that much of the soil was contaminated, which would significantly

increase the soil disposal costs. This dispute arose when Hemmerdinger concluded that Ruocco,

ETI’s owner, and Tomicic, the manager for this project, exaggerated these costs even more.

Ruocco and Tomicic engaged Recycle Technology, a company owned by Ruocco, Tomicic, and

William S. McCambridge (“McCambridge”), to dispose of the soil on ETI’s behalf.

Hemmerdinger brought suit, charging that Recycle Technology did no work: ETI just conspired




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with Recycle Technology to submit invoices to Hemmerdinger that inflated disposal expenses,

thereby increasing ETI’s profits.

        Hemmerdinger sued ETI, Ruocco, Tomicic, Recycle Technology, and McCambridge

raising a claim for state law fraud (“Claim One”), a substantive claim under the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (“Claim Two”), and a

claim for conspiracy to violate RICO, § 1962(d) (“Claim Three”). The jury found Tomicic and

McCambridge liable for fraud (Claim One), and concluded that Ruocco, ETI, Tomicic, and

Recycle Technology had participated in a RICO conspiracy (Claim Three). The court entered

judgment on June 6, 2016. Ruocco, ETI, and Tomicic then filed post-trial motions for judgment

as a matter of law and a new trial. When these motions were denied, Ruocco and Tomicic filed a

timely notice of appeal.

                                           *       *     *

        On appeal, Ruocco and Tomicic challenge the jury verdict and denial of the post-trial

motions on two grounds. They argue first that the jury verdict was inconsistent, and second that

the district court’s jury instruction as to the RICO conspiracy claim (Claim Three) was flawed.

They assert that both alleged errors entitle them to relief. We disagree.

        Addressing the inconsistent verdict claim first, it rests in part on the jury’s written

answers on the verdict sheet. The verdict sheet, which Judge Kuntz approved after a charge

conference with both parties, asked a series of “Yes/No” questions for each of Hemmerdinger’s

three claims. The questions drew attention to the elements of each claim, which parties were

liable, and the appropriate amount of damages. For our purposes, the following sections of the

verdict form, as filled out by the jury, are relevant:




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       Claim Two – Racketeer Influenced and Corrupt Organization Act (RICO) 18 U.S.C.
       § 1962(c) (Against all Defendants)

       1. Did a civil RICO enterprise exist among the defendants? (Select one)
                        YES                        NO
       If the answer to question 1 is YES, move on to question 2. If the answer to question 1 is
       NO, do not move on.

       ...

       Claim Three – Racketeer Influenced and Corrupt Organization Act (RICO) 18
       U.S.C. § 1962(d) (Against all Defendants)

       1. Was there an agreement among two or more persons to participate in an enterprise that
       would affect interstate commerce through a pattern of racketeering activity? (Select one)
                        YES                        NO
       If the answer to question 1 is YES, move on to question 2. If the answer to question 1 is
       NO, do not move on.

       2. Did a defendant knowingly and willfully become a member of the enterprise? (Select
       “yes” or “no” for each defendant)
               Earth Technology:           YES                 NO
               Frank M. Ruocco, Jr.:       YES                 NO
               Boris Tomicic:              YES                 NO
               Recycle Technology:         YES                 NO
               William McCambridge:        YES                 NO

Ruocco and Tomicic assert that the jury’s answer to Claim Two, Question One was inconsistent

with its finding of liability as to Claim Three (RICO conspiracy). They also assert that a jury

may not find defendants liable for a RICO conspiracy after it has expressly found that a RICO

“enterprise” does not exist. In answer to Claim Two, Question One, according to Ruocco and

Tomicic, the jury affirmatively indicated that there was no civil RICO enterprise “among the

defendants.”

       Ruocco and Tomicic argue, in addition, that a RICO conspiracy claim cannot succeed

unless at least one defendant is found liable for a substantive RICO offense, so finding liability

for Claim Three (§ 1962(d), RICO conspiracy) but not Claim Two (§ 1962(c), a substantive



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RICO offense) is inconsistent. One additional fact from the trial is relevant with regards to this

argument. During deliberations, the jury submitted the following question to the judge to clarify

the verdict form: “are claim two and claim three independent of each other as in the defendants

can be found guilty of claim three, irrespective of the outcome of claim two?” J.A. at 754. The

court answered “yes” after Ruocco’s attorney said that the answer was yes, he confirmed that

choice, and no other party objected.

       As to the jury instruction claim, Ruocco and Tomicic assert that the district court’s

instructions regarding Claim Three (RICO conspiracy) were flawed. They first take issue with

the instruction that, to find a RICO conspiracy, the jury need not find that a RICO “enterprise”

existed, just “that if the objective of the conspiracy had been achieved, the enterprise would have

been established.” Ruocco and Tomicic insist that for civil RICO conspiracy, a jury must find

that an enterprise did exist, not that it would have existed if the conspiracy came to fruition.

Ruocco and Tomicic both acknowledge, however, that the instruction to which they object is

taken from Leonard B. Sand, et al., Modern Federal Jury Instructions, CIVIL, #84-35 (Lexis

2016), and that they did not raise this challenge either during the district court’s charge

conference or in their post-trial motions.

                                             *   *      *

       To set aside a verdict as inconsistent, the moving party must show “the special verdict

answers [are] ‘ineluctably inconsistent.’” Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d

Cir. 2004) (emphasis removed) (quoting Tolbert v. Queens Coll., 242 F.3d 58, 74 (2d Cir.

2001)); see also Brooks v. Brattleboro Mem’l Hosp., 958 F.2d 525, 529 (2d Cir. 1992) (noting

courts “must adopt a view of the case, if there is one, that resolves any seeming inconsistency.”

(internal quotation and citation omitted)). Further, “endorsement [of a jury charge] might well be


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deemed a true waiver, negating even plain error review.” United States v. Hertular, 562 F.3d

433, 444 (2d Cir. 2009); see also Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir.

2006) (“It is well established that a party waives its objection to any inconsistency in a jury

verdict if it fails to object to the verdict prior to the excusing of the jury.”). And when a party

challenges jury instructions after having failed to do so at trial, “we review for plain error.”

Rasanen v. Doe, 723 F.3d 325, 332 (2d Cir. 2013); see also Jarvis v. Ford Motor Co., 283 F.3d

33, 56 (2d Cir. 2002) (“Objection to an inconsistency between two general verdicts that is traced

to an alleged error in the jury instruction or verdict sheet is properly made under Fed. R. Civ. P.

51. Yet to avail itself of relief under this Rule, a party must object before the jury retires to

deliberate.”).

        As to the claim that the verdict was inconsistent, we disagree. Assuming arguendo that

Defendants-Appellants’ legal argument has merit, the verdict form is not “ineluctably”

inconsistent because the jury did not find, despite Ruocco and Tomicic’s insistence to the

contrary, that no enterprise existed. The jury may have interpreted Claim Two, Question One as

asking whether there was an enterprise among all the defendants. The question did not use the

word “all,” but the title of Claim Two on the verdict sheet refers to “all defendants.” Further, in

Claim Three, Question Two, the jury checked off that four of the five defendants were involved

in an “enterprise,” suggesting that they found an enterprise among those four. Even if this is not

the best “view of the case,” we must adopt it because it “resolves any seeming inconsistency.”

Brooks, 958 F.2d at 529.

        As to Defendants-Appellants’ second attack on the consistency of the jury verdict, it has

been waived. Below, Ruocco told the court that it could instruct the jury that Claims Two and

Three are completely independent of one another, and Tomicic raised no objection. In such


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circumstances, they cannot now argue that liability as to Claim Three depends on Claim Two.

Their endorsement of the district court’s instruction was “a true waiver, negating even plain error

review.” Hertular, 562 F.3d at 444.

       Finally, the challenge to the district court’s Claim Three jury instruction also fails. In the

absence of an objection, we review for plain error. See Rasanen, 723 F.3d at 332. We have held

that when, as here, a trial court based jury instructions on pattern jury instructions that reflect our

current law, there is no plain error. See United States v. Fore, 169 F.3d 104, 109 (2d Cir. 1999).

The Modern Federal Jury Instructions supplied the very language that Ruocco and Tomicic now

object to, and they have not cited any authority that plainly shows the Modern Federal Jury

Instructions were incorrect.

                                          *       *       *

       We have considered Ruocco and Tomicic’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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