07-4314-cr
United States v. Pizzonia


                              UNITED STATES COURT OF APPEALS

                                       FOR THE S ECOND C IRCUIT



                                          August Term, 2008

(Argued: September 25, 2008                                          Decided: August 19, 2009)

                                        Docket No. 07-4314-cr


                                     U NITED S TATES OF A MERICA,

                                                                                     Appellee,
                                                —v.—

                                         D OMINICK P IZZONIA,

                                                                          Defendant-Appellant.


Before:
                            C ALABRESI, S TRAUB, and R AGGI, Circuit Judges.
                                         __________________

           Defendant, convicted of racketeering conspiracy in the United States District Court

for the Eastern District of New York (Jack B. Weinstein, Judge), now appeals on the ground

that, in a case where the indictment alleged that the pattern of racketeering “consisted of”

specified predicates, the government’s failure to prove any such predicate within the statute

of limitations precluded a guilty verdict.



                                                   1
       A FFIRMED.




              J OEY L IPTON, Assistant United States Attorney (Peter A. Norling, Paige
              Petersen, Assistant United States Attorneys, of counsel), for Benton J.
              Campbell, United States Attorney for the Eastern District of New York,
              Brooklyn, New York, for Appellee.

              D IARMUID W HITE (Brendan White, of counsel), White & White, New York,
              New York, for Defendant-Appellant.




R EENA R AGGI, Circuit Judge:

       Defendant Dominick Pizzonia appeals from a judgment of conviction for conspiracy

to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), which was

entered on October 2, 2007, by Judge Jack B. Weinstein after a jury trial in the United States

District Court for the Eastern District of New York. See 18 U.S.C. § 1962(c)-(d). Presently

incarcerated serving a 15-year prison term, Pizzonia invokes the statute of limitations to

challenge his conviction. He contends that the indictment limited the scope of the charged

conspiracy to seven predicate acts. Because the jury found only two of these acts proved,

both of which fell outside the relevant limitations period, Pizzonia submits that the district

court erred in denying his post-verdict motion for a judgment of acquittal pursuant to Fed.

R. Crim. P. 29.

       The argument is unconvincing for several reasons: (1) the indictment alleged that it



                                              2
was the pattern of racketeering – not the conspiracy itself – that consisted of the charged

predicate acts; (2) a racketeering conspiracy is a concept distinct from (a) the pattern of

racketeering through which the conspirators agree to participate in the affairs of the charged

enterprise, and (b) the predicate acts that may evidence the pattern; (3) while predicate acts

within the limitations period can demonstrate the racketeering conspiracy’s existence during

that time, this temporal requirement can also be satisfied by other evidence; (4) a jury

properly views predicate acts in light of the totality of the circumstances to determine

whether they manifest the threat of continued criminal activity essential to prove a pattern

of racketeering, and such circumstances, no less than the predicate acts themselves, can prove

a conspiracy’s existence beyond the conclusion of the last predicate act; and (5) in any event,

a racketeering conspiracy, like any other conspiracy, is presumed to continue until it achieves

its criminal object, and the object of a racketeering conspiracy is to conduct the affairs of a

charged enterprise through a pattern of racketeering, not to commit discrete predicate acts.

       As Judge Weinstein correctly observed, even though the predicate acts proved in this

case were outside the statute of limitations, other trial evidence permitted the jury to conclude

that both the charged racketeering conspiracy and Pizzonia’s membership in it continued into

the limitations period. See Sentencing Tr. at 12 (Sept. 5, 2007). Accordingly, we affirm the

judgment of conviction.




                                               3
I.     Background

       A.      The Relevant Limitations Period

       On May 26, 2005, a federal grand jury in the Eastern District of New York returned

an indictment against Pizzonia for the racketeering conspiracy at issue in this case. Thus, all

parties agree that pursuant to the five-year statute of limitations established by 18 U.S.C. §

3282, the government was required to prove Pizzonia’s participation in the conspiracy

sometime after May 26, 2000.

       B.      The Fourth Superseding Indictment

       Pizzonia ultimately stood trial on a fourth superseding indictment returned on

December 7, 2006 (“the Indictment”). Thus, we focus on the language of that pleading on

this appeal.

       The Indictment charged that from approximately 1987 through September 1995,

Pizzonia, co-defendant Alfred DiCongilio, and others employed by or associated with a

specific enterprise, to wit, the “Gambino organized crime family of La Cosa Nostra,”

Indictment ¶ 1,“conspired to . . . conduct and participate, directly and indirectly, in the

conduct of the affairs of that enterprise through a pattern of racketeering activity,” id. ¶ 15.

The Indictment stated that the “principal purpose” of the Gambino crime family was “to

generate money for its members and associates” through a wide range of criminal activities,

“including extortion, illegal gambling, interstate transportation of stolen goods, loansharking,



                                               4
narcotics trafficking and robbery.” Id. ¶ 10.1 To further these criminal moneymaking

activities, Gambino members and associates would engage in still other crimes, some

involving the use and threatened use of “physical violence, including murder.” Id. The

Indictment identified a number of secondary enterprise objectives for which Gambino

members and associates also employed criminal means, including violence and murder, i.e.,

to settle personal grievances and vendettas, to prevent detection by law enforcement, and to

coordinate criminal activities with other organized crime families. See id. ¶¶ 11-13.

       The Indictment alleged that the Gambino family operated through various “crews,”

which consisted of a number of “made” family members (sometimes referred to as

“soldiers”) as well as associates. Id. ¶ 2. Each crew was headed by a captain. Each captain

reported to the family “boss,” who was himself assisted by an “underboss” and a

“consigliere” in supervising and protecting the family’s overall activities. Id. ¶¶ 2-5. At

various times, Pizzonia served as “a captain, acting captain, soldier or associate within the

Gambino family.” Id. ¶ 8.

       The Indictment charged that the “pattern of racketeering activity through which the

defendants . . . agreed to conduct the affairs of the enterprise consisted of” seven numbered



       1
         This enterprise, one of five organized crime families composing the New York City
area Mafia, see United States v. Eppolito, 543 F.3d 25, 28 (2d Cir. 2008) (identifying
Bonanno, Colombo, Gambino, Genovese and Lucchese crime families as composing New
York City Mafia), has figured in other racketeering cases before this court, see, e.g., United
States v. Yannotti, 541 F.3d 112, 115 (2d Cir. 2008).

                                              5
“racketeering acts,” some of which were divided into lettered subparts. Id. ¶ 16 (emphasis

added). These predicate acts were as follows:

      •      Act One, A: From 1987 through June 1988, Pizzonia, DiCongilio, and
             unnamed others conspired to murder Frank Boccia.

      •      Act One, B: In June 1988, Pizzonia, DiCongilio, and unnamed others
             murdered Frank Boccia.

      •      Act Two, A: From September 1992 through December 24, 1992,
             Pizzonia and unnamed others conspired to murder Rosemary and
             Thomas Uva.

      •      Act Two, B: On December 24, 1992, Pizzonia and unnamed others
             murdered Rosemary Uva.

      •      Act Three: On December 24, 1992, Pizzonia and unnamed others
             murdered Thomas Uva.

      •      Act Four: Between 1995 and 1996, Pizzonia and unnamed others
             conspired to use extortionate means to collect extensions of credit from
             John Doe #1.

      •      Act Five: Between December 1999 and May 2000, Pizzonia and
             unnamed others conspired to use extortionate means to collect
             extensions of credit from John Doe #2.

      •      Act Six, A: Between 2001 and June 2002, Pizzonia and unnamed others
             made extortionate extensions of credit to John Doe #3.

      •      Act Six, B: Between 2001 and June 2002, Pizzonia and unnamed others
             used extortionate means to collect and attempt to collect an extension
             of credit from John Doe #3.

      •      Act Seven, A: Between January 1994 and January 1996, Pizzonia,
             DiCongilio and unnamed others participated in an illegal gambling
             business.


                                            6
       •      Act Seven, B: Between January 1994 and January 1996, Pizzonia,
              DiCongilio, and unnamed others profited from the same illegal
              gambling activity.

       C.     Trial

       At trial, the prosecution offered extensive testimonial and physical evidence that

convincingly established the existence of the charged enterprise; its moneymaking purpose;

and its members’ use of various criminal means to achieve that purpose and to protect the

enterprise from internal disloyalty, outside rivalry, and law enforcement detection. Similarly,

ample evidence was adduced demonstrating Pizzonia’s association with the charged

enterprise, including his induction as a “made” member of the Gambino family in 1988, and

his eventual promotion to the role of “captain” in 2001. Because the sufficiency of this

evidence is not challenged generally, but only as it pertains to the statute of limitations, we

do not review it further except as necessary to address Pizzonia’s timeliness challenge on

appeal.

       To establish Pizzonia’s participation in a conspiracy to conduct the affairs of the

Gambino family through a pattern of racketeering activity, the government sought to prove

the charged predicate acts. The jury found proved Pizzonia’s involvement in only two of the

seven acts: the 1992 conspiracy to murder Rosemary and Thomas Uva (Act Two, A) and the




                                              7
1994-1996 substantive gambling offense (Act Seven, A and B).2 While these crimes, on their

face, may appear distinct and complete, the jury concluded from the totality of the evidence

that, in fact, they manifested the relationship and continuity essential to form a pattern of

racketeering. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989).

       Further, although the proved predicates ended well before May 26, 2000, the jury

found that the charged racketeering conspiracy continued after that date and, specifically,

into the limitations period. On this point, the district court instructed the jury that the

government could not satisfy the statute of limitations simply by proving that the Gambino

family continued to operate after May 26, 2000. The jury had to find that Pizzonia

knowingly participated after that date in the charged conspiracy. Without objection, the court

instructed the jury as follows:

              The statute of limitations for the racketeering conspiracy
              charged in Count One is five years. . . . As to defendant
              Pizzonia, you must determine whether the RICO conspiracy
              charged in Count One, and Pizzonia’s participation in the
              charged conspiracy, continued beyond May 26, 2000. Even if
              you find that the Gambino family existed beyond May 26, 2000,
              you must be satisfied beyond a reasonable doubt that defendant
              Pizzonia knowingly participated in the charged RICO
              conspiracy, that’s Count One, beyond May 26, 2000.

Tr. at 4779-80. To confirm the jury’s comprehension of this instruction, the court interrupted


       2
        The jury did not indicate whether it found that other members of the charged
conspiracy committed any of the specified predicates within the limitations period. See
United States v. Yannotti, 541 F.3d at 120, 122-23 (rejecting statute of limitations challenge
where jury found timely predicate acts committed by other members of enterprise).

                                              8
its delivery of the charge to ask: “Do you understand that, everybody?” Id. at 4780. It then

noted on the record that “[e]verybody [on the jury] is nodding in agreement.” Id.

        Among the evidence offered by the government to prove Pizzonia’s participation in

the charged conspiracy after May 26, 2000, was testimony from former Gambino captain

Michael DiLeonardo that, in late 2001 or 2002, Pizzonia, then also a captain, served on a

Gambino family committee charged with the duty “to shake the trees,” which DiLeonardo

explained meant to increase the collection of proceeds from family members’ illegal

activities. Id. at 804-05, 913.

        D.     Defendant’s Rule 29 Motion for a Judgment of Acquittal

        After the jury returned its verdict finding Pizzonia guilty of racketeering conspiracy,

defendant moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 on the ground

that the government’s failure to prove a charged predicate act after May 26, 2000, necessarily

precluded it from carrying its burden on the statute of limitations. The district court denied

the motion, observing that ample record evidence supported a jury finding that both the

charged conspiracy and Pizzonia’s membership in it continued into the limitations period.

See Sentencing Tr. at 12 (Sept. 5, 2007) (“[Pizzonia] never abandoned the conspiracy. He

never withdrew from it. And the conspiracy continued up to and through the time of the

trial.”).

        The district court sentenced Pizzonia principally to fifteen years’ incarceration. This



                                               9
appeal followed.

II.    Discussion

       A. Standard of Review

       Rule 29 of the Federal Rules of Criminal Procedure provides that, on a defendant’s

motion after verdict, the court “must enter a judgment of acquittal of any offense for which

the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Pizzonia argues

that the district court erred in denying his Rule 29 motion because the evidence was

insufficient as a matter of law to prove the existence of the charged conspiracy or his

participation in it anytime between May 26, 2000, and May 26, 2005, the relevant limitations

period. Specifically, he asserts that by pleading that the pattern of racketeering activity

“consisted of” the seven alleged predicate acts, the Indictment so defined the scope of the

charged conspiracy and, thus, temporally limited the conspiracy to the predicates. Because

the proved predicate acts – the conspiracy to murder the Uvas, which concluded with their

deaths on Christmas Eve, 1992; and the substantive gambling operation, which was alleged

to have occurred between 1994 and 1996 – did not extend into the 2000-2005 limitations

period, Pizzonia insists his conviction cannot stand.

       We review the denial of a Rule 29 motion de novo, viewing the evidence in the light

most favorable to the government. See United States v. Amico, 486 F.3d 764, 780 (2d Cir.

2007). Applying this standard, we reject Pizzonia’s construction of the Indictment because



                                             10
it conflates the crime of conspiracy to violate RICO, see 18 U.S.C. § 1962(d), with the

pattern element of the substantive RICO violation that the conspirators intended to commit,

see id. § 1962(c). Like the district court, we conclude that, in proving the existence of the

charged RICO conspiracy within the statute of limitations, the government was not limited

to the predicate acts that were pleaded to demonstrate the intended pattern. We further

conclude that the totality of the evidence permitted a reasonable jury to find that the charged

conspiracy did continue beyond May 26, 2000, and therefore into the limitations period. See

United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009).3

       B.     The Temporal Scope of the RICO Conspiracy Was Not Limited to the Charged
              or Proved Predicate Acts

       RICO, specifically 18 U.S.C. § 1962(c), makes it a substantive 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, in the conduct

of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful

debt.” Section 1962(d), in turn, makes it “unlawful for any person to conspire to violate” the

substantive provisions of RICO. When read in conjunction with the language of § 1962(c),

RICO’s conspiracy provision thus proscribes an agreement to conduct or to participate in the



       3
          The trial court instructed the jury that “[t]he elements of a racketeering conspiracy
. . . may be inferred from the various kinds of evidence before you. . . . You must determine
whether, based on the entirety of the evidence, the government has proven that the defendant
entered into the required conspiratorial agreement.” Tr. at 4778-79.

                                               11
conduct of the enterprise’s affairs through a pattern of racketeering activity.4

       Pizzonia does not challenge this articulation of the law. Rather, he contends that the

prosecution narrowly defined the scope of the charged conspiracy by specifying in the

Indictment that the pattern of racketeering activity “consisted of” seven enumerated predicate

acts. Pizzonia submits that, on such a pleading, a conspiracy to participate in the affairs of

an enterprise through a pattern of racketeering cannot, as a matter of law, temporally extend

beyond the commission of the last proved predicate. We are not persuaded.

       At the outset, we note that the Indictment alleges that the pattern of racketeering

activity – not the conspiracy itself – consisted of the specified predicates: “The pattern of

racketeering activity through which the defendants Dominick Pizzonia and Alfred

DiCongilio agreed to conduct the affairs of the enterprise consisted of the racketeering acts

set forth below as racketeering acts one through seven of this Superseding Indictment.” See

Indictment ¶ 16. The distinction is significant. As this court emphasized in United States

v. Persico, 832 F.2d 705 (2d Cir. 1987), “the agreement proscribed by section 1962(d) is [a]

conspiracy to participate in a charged enterprise’s affairs” through a pattern of racketeering,


       4
          Reves v. Ernst & Young, 507 U.S. 170 (1993), adopted an “operation or
management” test to identify defendants who conducted or participated in the conduct of a
racketeering enterprise for purposes of substantive RICO, id. at 182, 184. The test, however,
does not apply to RICO conspiracy. See United States v. Zichettello, 208 F.3d 72, 99 (2d
Cir. 2000). A defendant whose role in a racketeering conspiracy does not involve operation
or management may be guilty under § 1962(d) where he “‘know[s] the general nature of the
conspiracy and that the conspiracy extends beyond [his] individual role.’” Id. (quoting United
States v. Rastelli, 870 F.2d 822, 828 (2d Cir. 1989)).

                                              12
“not [a] conspiracy to commit predicate acts,” id. at 713. Thus, in Persico, even though “the

last predicate acts ascribable to [the defendants] occurred more than five years prior to the

date of the indictment,” id., we concluded from the totality of the evidence that “the

government amply demonstrated that the conspiracy to conduct the affairs” of the enterprise

charged in that case “continued until, and well after . . . the date the superseding indictment

was filed,” id. at 713-14. On that basis, we upheld the defendants’ convictions for RICO

conspiracy.5

       Just as the evidence used to establish the enterprise and pattern elements “may in

particular cases coalesce,” United States v. Turkette, 452 U.S. 576, 583 (1981); see also

United States v. Eppolito, 543 F.3d 25, 50 (2d Cir. 2008), so too may the evidence used to

prove those elements and a conspiratorial agreement to engage in racketeering, see United

States v. Martino, 648 F.2d 367, 382-83 (5th Cir. 1981) (“Prosecution of RICO substantive

and conspiracy charges expectedly involves considerable overlap in the evidence.” (citing

Iannelli v. United States, 420 U.S. 770 (1975))). The concepts of racketeering conspiracy,

enterprise, and pattern, however, are not interchangeable. As we explained in United States



       5
         In a recent unpublished summary order, this court relied on Persico to reject the
argument that “the goals of the charged conspiracy were limited to or exclusively defined by
the predicate acts alleged in the indictment.” United States v. Soto, 269 F. App’x 22, 24 (2d
Cir. 2008). We identified “no error in the use of uncharged acts to prove that the RICO
conspiracy charge was not time-barred” and, in reaching this conclusion, distinguished a
racketeering conspiracy from the pattern element of RICO, id., much as we do in this
opinion.

                                              13
v. Russotti, 717 F.2d 27 (2d Cir. 1983), “it is neither the enterprise standing alone nor the

pattern of racketeering activity by itself which RICO criminalizes,” but “[r]ather, the

combination of these two elements,” id. at 33 (emphasis omitted). It follows, then, that the

pattern element of racketeering cannot by itself define a § 1962(d) conspiracy.             To

understand the scope of the jointly undertaken scheme, one must also consider the enterprise

that the conspirators agreed to conduct through a pattern of racketeering. In short, a RICO

conspiracy is never simply an agreement to commit specified predicate acts that allegedly

form a pattern of racketeering. Nor is it merely an agreement to join in a particular

enterprise. Rather, it is an agreement to conduct or to participate in the conduct of a charged

enterprise’s affairs through a pattern of racketeering. See United States v. Persico, 832 F.2d

at 713. For that reason, while a RICO conspiracy’s existence within the statute of limitations

may well be proved by evidence of predicate acts occurring within the limitations period, see

United States v. Yannotti, 541 F.3d at 122-23 (observing that proof of predicate acts by co-

conspirators established continuation of charged conspiracy into limitations period), that is

not the only means by which the law’s temporal requirement can be satisfied, see United

States v. Persico, 832 F.2d at 713.

       Pizzonia nevertheless insists that by specifying in the Indictment that the pattern of

racketeering “consists of” the seven enumerated predicate acts, the government necessarily

limited the scope of the charged racketeering conspiracy. We recognize that the pleading



                                              14
represents no casual choice of language by the prosecution. A Department of Justice manual

specifically instructs prosecutors that “[t]he pattern of racketeering should be drafted to

allege that it ‘consists of’ rather than ‘includes’ the acts of racketeering to avoid double

jeopardy problems in the event a RICO defendant is charged with a subsequent RICO

violation.” U.S. Dep’t of Justice, Racketeer Influenced & Corrupt Organizations, A Manual

for Federal Prosecutors 222 (4th rev. ed. 2000) (footnotes omitted).

       We express no opinion as to whether this pleading practice will, in fact, avoid the

identified double jeopardy concerns. We note simply that the question may not admit a ready

answer. Although our court has indicated that if either the enterprise or the pattern at issue

in successive RICO prosecutions is different, “there is no infirmity under the double jeopardy

clause,” United States v. Russotti, 717 F.2d at 33, we have not relied on predicates alone to

distinguish patterns of racketeering. Rather, we have identified a five-factor test – essentially

looking to the totality of the circumstances – to determine whether two RICO counts charge

distinct patterns of racketeering activity:

              (1) the time of the various activities charged as parts of separate
              patterns; (2) the identity of the persons involved in the activities
              under each charge; (3) the statutory offenses charged as
              racketeering activities in each charge; (4) the nature and scope
              of the activity the government seeks to punish under each
              charge; and (5) the places where the corrupt activity took place
              under each charge.

Id. Our sister circuits have adopted similar holistic approaches. See United States v.

Wheeler, 535 F.3d 446, 449-50 (6th Cir. 2008) (concluding from application of Russotti

                                               15
factors that successive prosecutions involved same pattern of racketeering despite some

differences in predicate acts); United States v. DeCologero, 530 F.3d 36, 71 (1st Cir. 2008)

(“In comparing the charged patterns of racketeering, we consider the totality of the

circumstances, including the similarities of the time, the place, the people, and the nature and

scope of the activities involved in each indictment.” (internal quotation marks deleted));

United States v. Calabrese, 490 F.3d 575, 581 (7th Cir. 2007); United States v. Cole, 293

F.3d 153, 158 (4th Cir. 2002); United States v. Smith, 82 F.3d 1261, 1267 (3d Cir. 1996);

United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995); United States v. Beszborn, 21 F.3d

62, 69 (5th Cir. 1994) (observing that double jeopardy challenge to RICO prosecutions

required court to “review the entire record” in view of same five factors outlined in Russotti);

United States v. Ruggiero, 754 F.2d 927, 932-33 (11th Cir. 1985).

       This totality-of-the-circumstances approach to identifying a pattern of racketeering

is in accord with the rationale underlying RICO’s pattern requirement. “Congress was

concerned in RICO with long-term criminal conduct.” H.J. Inc. v. Nw. Bell Tel. Co., 492

U.S. at 242. RICO’s pattern element thus serves to ensure that a defendant’s criminal

participation in an enterprise is not merely isolated or sporadic, but indicative of the sort of

continuity of criminal activity – or the threat of continuity – that is the hallmark of

racketeering. See id. at 239, 242; Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14

(1985) (discussing continuity aspect of pattern element); United States v. Eppolito, 543 F.3d



                                              16
at 50-51 (noting that pattern element signals Congress’s intent to exclude “isolated” or

“sporadic” criminal activity from the definition of racketeering). Although no less than two

predicate acts must be committed – or, in the case of RICO conspiracy, agreed to, see United

States v. Persico, 832 F.2d at 713 – to demonstrate a pattern of racketeering, in the end, it is

not the number of predicates proved but, rather, “the relationship that they bear to each other

or to some external organizing principle” that indicates whether they manifest the continuity

required to prove a pattern, H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. at 238.

       Indeed, the continuity aspect of RICO’s pattern element explains why we reject

Pizzonia’s argument that the charged conspiracy necessarily achieved its objective with the

completion of the two proved predicates, i.e., the Uva murders and the gambling operation.

To explain, we begin by reviewing some basic principles relevant to the concept of RICO

“continuity.” The law recognizes RICO “continuity” to be “both a closed- and open-ended

concept, referring either to a closed period of repeated conduct, or to past conduct that by its

nature projects into the future with a threat of repetition.” Id. at 241. Continuity over a

closed period – which is not present in this case – may be proved by “a series of related

predicates extending over a substantial period of time.” Id. at 242. Over an open period,

however, continuity may be proved even by a small number of predicates, or by ones

occurring close together in time, if “the racketeering acts themselves include a specific threat

of repetition extending indefinitely into the future.” Id. (noting that implicit in extortionate



                                              17
demands for monthly payments from storeowners in return for “insurance” against broken

windows was the threat of continued demands). Alternatively, the threat of continued

criminal activity over an open period can be established where discrete predicates “can be

attributed to a defendant operating as part of a long-term association that exists for criminal

purposes.” Id. at 243. This is such a case. Long-term criminal associations plainly include

“those traditionally grouped under the phrase ‘organized crime,’” id., of which the Gambino

crime family is an example, see United States v. Yannotti, 541 F.3d at 115-16. As the

Indictment asserts, the Gambino family exists for the purpose of making money from a wide

variety of criminal activities. Further, the family uses crime, notably violent crime, to protect

its money-making operations. Thus, an agreement to participate in the affairs of such an

enterprise through a pattern of racketeering activity, even one manifested by only two

predicate acts, poses an open-ended risk of continuing criminal conduct that does not

necessarily conclude with the last pleaded predicate. This is not to foreclose the possibility

of racketeering conspiracies with limited objectives even within organized crime enterprises.

We hold only that where, as here, the affairs of the enterprise in which a defendant agreed

to participate through a pattern of racketeering are broadly defined to encompass all its

criminal money-making objectives and all means used to protect those objectives, the

conspiracy does not end, as a matter of law, with the last proved predicate.

       This conclusion comports with the law’s general recognition of conspiracy as a



                                               18
“continuing crime,” that is “not complete until the purposes of the conspiracy have been

accomplished or abandoned.” See United States v. Eppolito, 543 F.3d at 47 (internal

quotation marks omitted). As we have already noted, the purpose of a RICO conspiracy is

to conduct or to participate in the conduct of a charged enterprise’s affairs, “not . . . to

commit predicate acts.” United States v. Persico, 832 F.2d at 713. Thus, whether a pattern

is pleaded to have “consisted of” or “included” specified predicate acts, the completion of

those predicates does not, as a matter of law, dictate the end of the pattern, much less the

attainment or abandonment of the conspiracy’s overall objective. To the contrary, once the

government presents sufficient evidence to show the existence of a conspiracy having a

continuing purpose – in this case, earning money for the Gambino family through various

criminal activities – the law presumes the continued existence of the conspiracy and places

“the burden . . . on the defendant to prove that the conspiracy was terminated or that he took

affirmative steps to withdraw.” United States v. Eppolito, 543 F.3d at 49; see United States

v. Yannotti, 541 F.3d at 123; United States v. Spero, 331 F.3d 57, 60 (2d Cir. 2003).

       This presumption was not, however, employed in this case.              Judge Weinstein

instructed the jury that the government had to adduce further evidence that the charged

conspiracy and Pizzonia’s participation in it continued into the limitations period. While this

participation did not have to be a specified predicate act, it had to be attributable to Pizzonia

himself and not simply to other members of the charged conspiracy, a narrower view of



                                               19
§ 1962(d) than we recently endorsed in United States v. Yannotti, 541 F.3d at 122. For

reasons discussed in the next section, we conclude that the evidence was sufficient to support

a jury finding that the government carried this burden of proving Pizzonia’s continued

participation in the conspiracy. We here hold simply that the Indictment’s pleading that a

pattern “consisted of” specified predicate acts (1) did not preclude a jury from considering

those predicates in light of the totality of the evidence to determine whether they manifested

a pattern of continuing criminal activity through which the conspirators agreed to conduct

the enterprise’s affairs and, accordingly, (2) did not limit the temporal scope of the charged

racketeering conspiracy to the time-frame of those predicates.6

       C.      Evidence of Conspiracy Within the Limitations Period

       At oral argument, Pizzonia’s counsel indicated that his sufficiency challenge was

limited to the government’s inability to prove a predicate act within the limitations period.

While this concession waives any broader sufficiency challenge, see United States v.

Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009), we note that such an argument would, in any

event, fail on its merits.

       Pizzonia effectively concedes that the evidence was sufficient to permit a reasonable


       6
        In light of this ruling, no further discussion is necessary for us to reject as meritless
Pizzonia’s argument that Judge Weinstein constructively amended the charged conspiracy
by allowing the jury to consider its continuance beyond the last proved predicate. Because
no objection to the charge was raised in the district court, our review on this point would, in
any event, be limited to plain error. See United States v. Weintraub, 273 F.3d 139, 145 (2d
Cir. 2001).

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jury to find proved the charged conspiracy and his participation in it before May 26, 2000.

Against that background, even when we set aside evidence pertaining to acquitted counts or

predicates found not proved, our independent review of the totality of the remainder of the

record, viewed in the light most favorable to the government, see United States v. Amico,

486 F.3d at 780, leads us to reach the same conclusion as the district court: ample evidence

demonstrated Pizzonia’s continued participation in that conspiracy after May 26, 2000. Most

obviously, evidence was adduced that, in 2001, Pizzonia held the rank of captain in the

Gambino crime family. In that capacity, he sat on a special committee that sought to increase

family revenues from the Gambinos’ assorted criminal activities. It is difficult to imagine

evidence that could more convincingly demonstrate a defendant’s agreement to participate

in the affairs of the charged enterprise through a pattern of continuing criminal activity.

       Accordingly, we conclude that the district court correctly denied Pizzonia’s Rule 29

motion for a judgment of acquittal.

III.   Conclusion

       To summarize, we conclude

       1.     Even though the pattern of racketeering was alleged to have “consisted of”

              specified predicate acts, neither that pattern nor those predicates defined the

              scope of the charged RICO conspiracy so as to require proof of a predicate

              within the statute of limitations to support conviction.



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2.    Although the last proved predicate concluded before the limitations period, a

      reasonable jury could have concluded from the totality of the evidence that the

      charged racketeering conspiracy and Pizzonia’s participation in that conspiracy

      continued into the limitations period.

Accordingly, we A FFIRM the judgment of conviction.




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