                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                             No. 01-30376




UNITED STATES OF AMERICA,

     Plaintiff - Appellee


VERSUS


SEBASTIAN SALVATORE, also known as Buster, also known as Harry,

     Defendant - Appellant



           Appeal from the United States District Court
               For the Eastern District of Louisiana
                         No. 94-CR-158-18-N

                             April 2, 2002


Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:**

     The long and winding road upon which this case has traveled

continues to unfold in this appeal from the district court’s



     *
      Circuit Judge of the Third Circuit Court of Appeals, sitting
by designation.
     **
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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partial denial of appellant’s petition for a writ of coram nobis.

Although two main issues are raised, our primary task is to

consider whether the jury’s decision to convict the appellant,

Sebastian Salvatore (“Salvatore”), on twenty non-mail fraud counts

was prejudiced by the jury’s consideration of seven vacated mail

fraud counts.      Because we find that no prejudicial spillover

occurred, we affirm.

I.   BACKGROUND AND PROCEDURAL HISTORY

     In 1994, a federal grand jury indicted Salvatore and sixteen

codefendants for operating a criminal enterprise that subverted the

licensing requirements of the Louisiana Video Poker Law.   The case

against Salvatore was tried to a jury.     The jury found Salvatore

guilty of 27 counts.     They included one count of violating the

Racketeer Influenced Corrupt Organizations Act (RICO), one count of

conspiracy to violate RICO under 18 U.S.C. § 1962, seven counts of

mail fraud under 18 U.S.C. § 1341, two counts of conducting an

illegal gambling business (“IGB”) under 18 U.S.C. § 1955, sixteen

counts of wire fraud under 18 U.S.C. § 1343, and one count of

interstate travel and communication in aid of racketeering (“ITAR”)

under 18 U.S.C. § 1952. Salvatore was sentenced to eighteen months

of imprisonment, to be followed by three years of supervised

release, and ordered to pay restitution.

     After conviction, Salvatore appealed to our court and raised

three arguments.    First, he contended that the video poker license


                                  2
he was accused of fraudulently obtaining was not property under 18

U.S.C.   §   1341,   and   thus   the       mail   fraud   charges   should    be

overturned. Second, he asserted that the evidence was insufficient

to uphold his convictions.        Third, he claimed that the district

court erred in empaneling an anonymous jury.               We rejected each of

these contentions and therefore upheld all the convictions.                   See

United States v. Salvatore, 110 F.3d 1131 (5th Cir. 1997).                With

respect to Salvatore’s first argument, we specifically held as a

matter of first impression that “video poker licenses constitute

money or property as required by the mail fraud statute.” Id. at

1143.

     Three years later, the Supreme Court ruled on the video poker

license as property issue in Cleveland v. United States, 531 U.S.

12 (2000).     The Cleveland Court held that “§ 1341 requires the

object of the fraud to be ‘property’ in the victim’s hands and that

a Louisiana video poker license in the State’s hands is not

‘property’ under § 1341.”     Id. at 25-26.         Thus, after Cleveland, it

became clear that Salvatore’s seven mail fraud convictions were

improper despite our holding to the contrary.

     By 2001, Salvatore had served his sentence, complied with the

terms of his supervised release, and had paid his assessment fees.

On January 5, 2001, he filed a petition for writ of error coram

nobis in the district court asking the court to vacate all of his

convictions.    He argued that his mail fraud convictions must be


                                        3
vacated based upon the Cleveland ruling.        He also contended that

the RICO convictions should be overturned because the two IGB

counts, the remaining sub-predicate acts upon which the RICO

convictions were based after the three sub-predicate acts of mail

fraud were erased, were invalid.       He asserted that the video poker

business he was involved in was not “illegal” if the licenses were

not obtained by fraud and there was no way to tell whether he had

been convicted of the IGB counts directly or only vicariously.

Finally, he asked the court to set aside his other convictions on

the grounds that the defective mail fraud counts impermissibly

tainted the entire trial.

     The district court vacated the seven mail fraud counts based

upon Cleveland, but denied relief on all other grounds.          The court

concluded that the RICO violations survived Cleveland because the

special jury verdict form showed that, irrespective of the mail

fraud convictions, Salvatore committed two predicate racketeering

acts.   The   court   also   rejected    the   argument   that    the   IGB

convictions occurred vicariously as a result of the mail fraud

convictions because the court specifically instructed the jury to

consider the evidence for each count separately. The court further

concluded that the mail fraud evidence did not impermissibly taint

the other convictions.

     Salvatore filed a timely notice of appeal from the district

court’s order. We have jurisdiction to hear the appeal pursuant to


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28 U.S.C. §§ 1291 and 1294.

II.   STANDARD OF REVIEW

      At the outset, we note that this type of writ is typically

granted   only   to   correct    errors     which   result   in    a   complete

miscarriage of justice.         United States v. Morgan, 346 U.S. 502,

506-512 (1954).       To obtain coram nobis relief, Salvatore must

demonstrate that “1) there are circumstances compelling such action

to achieve justice, 2) sound reasons exist for failure to seek

appropriate earlier relief, and 3) the petitioner continues to

suffer legal consequences from his conviction that may be remedied

by granting of the writ.”         United States v. Mandanici, 205 F.3d

519, 524 (2nd Cir. 2000).        On appeal, we review factual findings

for clear error and questions of law de novo.                     The ultimate

decision whether to deny or grant coram nobis relief, however, we

review for abuse of discretion.           Id.; See also Alikhana v. United

States, 200 F.3d 732, 734 (11th Cir. 2000) (citations omitted).

III. ANALYSIS

A.    RICO and RICO Conspiracy

      Salvatore argues that once the mail fraud convictions are

withdrawn, the RICO and RICO conspiracy counts all collapse.                 We

disagree.

      To convict Salvatore of the RICO violation, the government had

to prove that Salvatore unlawfully conducted and participated in

the affairs of an enterprise through a pattern of racketeering


                                      5
activity.   A pattern of activity requires two or more predicate

acts and a demonstration that the racketeering predicates are

related and amounted to or pose a threat of continued criminal

activity.   St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425,

441 (5th Cir. 2000).        Therefore, the RICO and RICO conspiracy

counts cannot be overturned if Salvatore committed at least two

valid predicate acts of racketeering.

     At trial, the district judge utilized a special verdict form

which allowed the jury to determine which predicate acts were

proven and which were not proven. Racketeering Act #1 consisted of

the sub-predicate    acts   of   mail   fraud   and   conducting   an   IGB.

Racketeering Act #2 consisted of two sub-predicate acts of mail

fraud and one act of conducting an IGB.           The jury specifically

found that Appellant committed all five sub-predicate acts.

     After Cleveland, the three mail fraud predicate acts can no

longer support the RICO counts.     However, the special jury verdict

conclusively demonstrates that the jury found Salvatore guilty of

the two remaining sub-predicate acts involving the IGB counts.

Therefore, we will not overturn the RICO and RICO conspiracy

convictions.1   See United States v. Peacock, 654 F.2d 339, 348 (5th


     1
      We also reject Salvatore’s claim that the two predicate acts
are invalid because the government did not meet the requirements
for proving violations of 18 U.S.C. § 1955.        To make out a
violation of § 1955, the government had to prove that Salvatore
conducted an illegal gambling business. 18 U.S.C. § 1955(b)(1)
states that an “illegal gambling business” means a gambling
business which -(i) is a violation of the law of a State or

                                    6
Cir. 1981) (upholding RICO convictions because a special verdict

form demonstrated that the jury found the defendants guilty of at

least two   predicate   acts   other   than   the   reversed   mail   fraud

charges).

B.   Prejudicial Spillover

     Salvatore contends that there was prejudicial spillover from

the mail fraud counts which tainted the convictions on the other

counts.   In essence, he argues that the presence of the seven mail

fraud counts, and the convictions on those counts, prejudiced the

jury against him, and mandates the reversal of the other 20 counts.

     In evaluating Salvatore’s claim of prejudicial spillover of

evidence from the vacated mail fraud counts, we look at the



political subdivision in which it is conducted; (ii) involves five
or more persons who conduct, finance, manage, supervise, direct, or
own all or part of such business; and (iii) has been or remains in
substantially continuous operation for a period in excess of thirty
days or has gross revenue of $2,000 in any single day. Here, the
state law at issue, the Louisiana Video Poker Devices Control Law,
requires that all prospective licensees and those who are given a
license must satisfy “suitability” criteria.       La. Rev. Stat.
27:310.    The government claims that Salvatore and his co-
conspirators violated the Louisiana suitability law when (1) they
had Christopher Tanfield and Steve Bolson act as “front men” to
obtain the licenses for their corrupt organization, and (2) when
they ignored the continuing duty to inform the Louisiana Gambling
Division of the true character and associations the licensees had.
Based upon the evidence presented at trial, we conclude that the
jury could properly find that Salvatore conducted a gambling
business which violated the Louisiana Video Poker Law and thus
could also properly find that Salvatore violated the federal IGB
statute. Consequently, the two IGB counts serve as valid predicate
acts for the RICO counts. The jury’s findings as to these two
predicate acts are sufficient to support the RICO convictions and
will not be disturbed.


                                   7
totality of the circumstances.              To guide us in this inquiry, we

apply a three-part test: (1) whether the evidence on the vacated

counts was inflammatory and tended to incite or arouse the jury to

convict the defendant on the remaining counts; (2) whether the

evidence on the vacated counts was similar to or distinct from that

required to prove the remaining counts; and (3) the strength of the

government’s case on the remaining counts.                See United States v.

Naiman, 211 F.3d 40, 50 (2nd Cir. 2000).

       Applying this test, we find that no prejudicial spillover

occurred.     First, the evidence concerning the mail fraud counts

involved     technical    information       about   the   video   poker   license

application process.       The evidence presented involved Salvatore’s

role in setting up a “front man” to get the license to lease the

video poker machines.          Although this evidence tended to show

Salvatore in a pejorative light, it is not the type that is so

inflammatory that it would incite the jury to convict Salvatore on

the other counts.        Moreover, the specificity of the jury verdict

form   and    the   district      judge’s    instructions    to    the    jury   to

separately consider each count, and the evidence pertaining to it,

militates against a determination that the jury was incited to

convict on the remaining twenty counts.

       Second,   courts    have    stated    that   “where   the    vacated      and

remaining counts emanate from similar facts, and the evidence

introduced would have been admissible to both, it is difficult for


                                        8
the defendant to make a showing of prejudice.”               Naiman, 211 F.3d at

50; United States v. Morales, 185 F.3d 74, 82 (2nd Cir. 1999).                     We

agree   with    this   statement.      Here,     the   evidence     relating       to

Salvatore’s     mail   fraud   convictions     was     related     to    his    other

convictions and would have been properly admissible even without

the mail fraud counts. Thus, the second factor also weighs against

Salvatore.

      Finally, we note that the government’s case against Salvatore

on the remaining counts is strong enough to prevent us from finding

prejudicial spillover. FBI Agent Richard McHenry testified about

the numerous conversations that took place between members of the

conspiracy     which   included      Salvatore.        Moreover,        Christopher

Tanfield’s testimony inculpated Salvatore as participating in the

efforts to both hide the mob connections of LRO and Worldwide

Gaming and defraud Bally Gaming of hundreds of thousands of dollars

in advances and loan payments.

IV.   CONCLUSION

      The two IGB counts were valid predicate acts which support the

RICO and RICO conspiracy counts.            The use of the special verdict

form, the similarities between the evidence on the vacated counts

and   remaining    counts,     the   technical    nature      of   the    evidence

presented      concerning    mail    fraud,    and     the    strength     of    the

government’s case lead us to conclude that the twenty non-mail

fraud counts should not be overturned on the basis of prejudicial


                                        9
spillover.   Consequently, we affirm the district court’s decision

in all respects.

     AFFIRMED.




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