
USCA1 Opinion

	




          August 26, 1993   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1708                                    UNITED STATES,                                      Appellee,                                          v.                                    SIDNEY WEINER,                                Defendant, Appellant.                                 ___________________                                     ERRATA SHEET            The opinion of  this Court issued on  August 23, 1993, is  amended        as follows:            On cover sheet  under Attorneys' names "Mazer" should be corrected                                                   _______        to read "Mezer."                ________            Dinisco  should  be corrected  to  read  "DiNisco".    On page  4,            _______                                  _________        paragraph 2, "Santiago" should be corrected to read "Santiano."                     __________                             ___________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1708                                    UNITED STATES,                                      Appellee,                                          v.                                    SIDNEY WEINER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Feinberg,* Senior Circuit Judge,                                      ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Harry C. Mezer for appellant.            ______________            Sean  Connelly, Attorney,  United  States  Department of  Justice,            ______________        with  whom  A.  John Pappalardo,  United  States  Attorney, Ernest  S.                    ___________________                             __________        DiNisco,  Assistant  United States  Attorney,  and  Todd E.  Newhouse,        _______                                             _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                   August 23, 1993                                 ____________________        ___________________________        *Of the Second Circuit, sitting by designation.                 BOUDIN,  Circuit  Judge.   Sidney Weiner,  together with                          ______________            other defendants,  was  charged in  a multi-count  indictment            revolving  around loansharking  and illegal  debt collection.            In  the nineteen counts directed at Weiner, he was accused of            mail  fraud,   18  U.S.C.     1341,   conspiracy  to  collect            extensions of credit by extortionate means, 18 U.S.C.    894,            and conducting and  conspiring to conduct  the affairs of  an            enterprise  through  a pattern  of  racketeering  activity or            collection of  unlawful debt,  in violation of  the Racketeer            Influenced and Corrupt Organizations Act ("RICO"), 18  U.S.C.              1962(c), (d).                 Weiner's case  was severed  for reasons relating  to his            health,  and he  stood trial  alone.1   At  the close  of the            government's case,  the trial  court granted  Weiner's motion            for acquittal as to all of  the mail fraud counts and all but            four counts  charging conspiracy  to collect an  extension of            credit through  extortion.     The jury  convicted Weiner  of            conspiring  to violate,  and  violating, RICO,  and of  three            counts  of  extortion conspiracy  under 18  U.S.C.    894; it            acquitted Weiner  on the  remaining count under  18 U.S.C.               894.   The district court  then sentenced Weiner to a term of            two years' imprisonment. Weiner now appeals.  We affirm.                                            ____________________                 1Other  defendants were  tried and  convicted in  United                                                                   ______            States  v. Oreto, appeals  pending, No. 91-1769,  et al., 1st            ______     _____            Cir.                                         -2-                                         -2-                                          I.                 The gist of  the government's case, so far  as pertinent            here, was  that Weiner,  a bank official,  associated himself            with a  loanshark enterprise headed by one  Frank Oreto, Sr.;            that the  loanshark enterprise  encouraged debtors to  obtain            bank loans, sometimes unlawfully,  to pay off prior loanshark            debts;  that  new  bank  debts were  collected  by  loanshark            enforcers using  extortion; and that Weiner  used his banking            position  and   properties   he  owned   to  facilitate   the            enterprise's   affairs.     Because  Weiner   challenges  the            sufficiency  of the  evidence, we summarize  the government's            proof in some detail.  Construed in a light  favorable to the            verdict, see United States v. Rivera-Santiano, 872 F.2d 1073,                     ___ _____________    _______________            1078-79 (1st  Cir.), cert. denied,  492 U.S. 910  (1989), the                                 ____________            government's  evidence  permitted   the  jury  to  find   the            following.                 In 1982, Weiner, a director, consultant and  stockholder            of  Capitol Bank  and  Trust Company  of Boston  ("Capitol"),            hired Oreto to  collect certain  loans in  default that  were            made by  Capitol.   Oreto headed a  loanshark operation  that            loaned cash to borrowers  at interest rates as high  as seven            percent per week, and that employed tall, physically imposing            men  who used threats of violence to collect from debtors who            fell  behind  in their  payments.    Through Weiner,  Capitol                                         -3-                                         -3-            compensated Oreto, with off-the-record cash payments from the            bank, for his services in collecting Capitol's own loans.                  The three  extortion conspiracy counts  for which Weiner            was  convicted involved  debts  owed by  Frank Falzone,  Fred            Lambert,  and Chun Hing "Joe" Wong.  Falzone and Lambert each            obtained a  $2500 loan from  Capitol by  paying kickbacks  to            Fred Dandrow and Ron Browder.  Dandrow introduced Falzone and            Lambert  to  Browder,  a   Capitol  loan  officer.    Browder            instantly  approved their loan  applications and  issued bank            checks  in the  amount of  the loans.   Lambert  borrowed the            money  on  his bookmaker's  instructions  to consolidate  his            bookmaking debts.                    When  Falzone  and  Lambert defaulted  on  their  loans,            Dandrow  was summoned to Oreto's house to meet with Oreto and            Weiner.  At  the meeting,  Oreto said that  Dandrow would  be            held  responsible  for  any  outstanding debt  on  the  loans            secured  by  kickbacks, and  Dandrow  agreed  to contact  the            borrowers.  At a  second meeting with Oreto which  Weiner did            not attend, Dandrow was  introduced to "Beardsy" Santiago and            told  to bring Santiago to the borrowers' homes.  Santiago is            6'4" tall,  weighs between 230-280 pounds,  and was described            by Dandrow as resembling "a motorcycle gang member."  Dandrow            later  met  with  Weiner  and Dennis  Petrosino,  another  of            Oreto's collectors.    Weiner    told Dandrow  to  work  with            Petrosino in collecting the loans.                                             -4-                                         -4-                 Dandrow went to Falzone's home,  accompanied by Santiago            and  Petrosino,  and asked  Falzone to  get  inside a  car to            discuss repayment  of his  loan.   Inside the  car, Petrosino            told Falzone that his loan "wasn't going to go away" and that            Falzone's parents would have  to pay the loan if  Falzone did            not come up  with the money.   Falzone testified that he  was            "pretty scared" and "just wanted to get out of the  car."  On            another  occasion, Santiago drove  Falzone to  a house  for a            meeting  with Oreto,  and Oreto  told Falzone to  make weekly            payments at  Gateway Rent-A-Car, a business  owned by Weiner.            Falzone  left the  meeting "scared"  and made  two subsequent            payments at Gateway.   Eventually Falzone's mother  contacted            Capitol to arrange a repayment schedule with the bank.                 Lambert  first   came  into   contact  with   the  Oreto            organization after receiving a  phone call instructing him to            go to Gateway Rent-A-Car.  There,  he met "two big guys"  who            said they "wanted their money."  Lambert began to make weekly            payments of $25  which he paid to Oreto's  men who would come            to his home in  Winthrop to collect.  Lambert  stopped making            payments after he moved to another town.  When he later moved            back  to Winthrop,  he  was visited  late  one night  by  two            different  "big," "heavy" men.   In a discussion  held in the            men's car, Lambert  agreed to resume payment  and handed over            $25 on the spot.                                         -5-                                         -5-                 When the payments later  ceased, Lambert was summoned to            a  meeting  with  Oreto  at the  Fasad's  nightclub,  another            business  owned by  Weiner.   Lambert thereafter  made weekly            payments  on a consistent basis.  He testified that Oreto and            his men scared him.  The Lambert loan was discussed by Weiner            and  Oreto's   "collection  manager,"   John  Costa,   in  an            intercepted  telephone conversation.   When  Costa said  that            Lambert had been located  and Costa proposed to "get  back in            action with him," Weiner approved this plan.                 Wong obtained  his loan from  the Community  Cooperative            Bank   ("Community"),  where  Weiner  was  also  a  director.            Community  was later  acquired by  Capitol.   Wong had  heavy            gambling debts  which he  paid  off by  borrowing money  from            Oreto  at weekly  interest  rates of  five  percent.   Wong's            repayments to  Oreto were made  at Gateway Rent-A-Car.   Wong            then obtained a $30,000  loan from Community in order  to pay            off his debt to  Oreto.  With Oreto's knowledge, Wong  put up            his  parent's house as collateral for the loan and signed his            parents' names to  the loan  papers supplied by  Oreto.   The            loan from Community was approved by Weiner.                 Oreto required Wong  to make weekly payments  of $500 on            the loan.  When Wong fell  behind on his payments, Oreto sent            Petrosino  and  another  man  to the  restaurant  where  Wong            worked.  The men grabbed Wong, who was hiding in the kitchen,            took him outside, and told him  that Oreto was mad and wanted                                         -6-                                         -6-            to see him.  In a meeting at Fasad's the next day, Oreto told            Wong, "it's not nice, you don't  pay . . . I can beat  you up            with a baseball bat."  Wong fled to New Hampshire and had his            wife  make  further payments  on  the loan.    Wong's parents            eventually learned that  a mortgage had been  placed on their            house without their consent.   After they contacted Community            to report  the problem,  Weiner agreed  to purchase the  loan            from the bank.                 The Oreto loanshark operation  itself was the subject of            extensive evidence, certain of its records having been seized            by the authorities.   The seized records revealed  that "Sid,            the  bank" paid part of  the weekly salary  of Costa, Oreto's            collection  manager, for  about  38  weeks  in 1984-85.    In            addition  to  hiring  Oreto  to collect  bank  loans,  Weiner            allowed Oreto to conduct his loansharking business at Gateway            Rent-A-Car and  Fasad's  nightclub, both  properties held  in            Weiner's  name.2  Oreto  was Weiner's  silent partner  in the            ownership and operation of Fasad's.                                        II.                   The   evidence  just   recited  is   the  core   of  the            government's  effort to  show that  Weiner had  conspired, in            violation of  18 U.S.C. 1984, to use  "extortionate means" in                                            ____________________                 2Wong testified  that Oreto at  one point told  him, "We            are  not working in  Gateway anymore.   We  have a  new place            called Fernwood restaurant.  Next time you come up to pay me,            you should  go  to Fernwood."    Fernwood was  later  renamed            "Fasad's".                                         -7-                                         -7-            seeking to collect an extension of credit, or more precisely,            three loan  debts owed  respectively by Falzone,  Lambert and            Wong.   Weiner  argues  that the  evidence was  insufficient,            focusing on  the element of extortion.   "Extortionate means"            includes  "the use,"  or "an  express or  implicit threat  of            use,"  of "violence  or  other criminal  means"  to harm  any            person or property.  18 U.S.C.   891(7).  Weiner argues  that            the evidence  did  not permit  a  rational jury  to  conclude            beyond a reasonable doubt that extortionate means were proved            or that he conspired to have the loans collected through such            means.  We disagree.                 Falzone and Lambert were  not expressly threatened  with            violence but implicit threats suffice under the express terms            of the  statute.   The evidence  showed, among  other things,            that Falzone and Lambert were confronted by large, physically            imposing men; that these men showed up at their homes, on one            occasion  late at night;  and that  Falzone and  Lambert were            directed to get  into a car to discuss  payment of the loans.            Both Falzone and Lambert testified that they were frightened,            with  Falzone at one  point hiding  in his  house.   The jury            could rationally conclude that the two men had good reason to            be  afraid.  As for  Wong, Oreto's statement  about a beating            with a  baseball bat is about as plain and direct a threat as            one can imagine.                                         -8-                                         -8-                 A rational jury could  also conclude beyond a reasonable            doubt that  Weiner knowingly  conspired to collect  the debts            through  extortion.   An agreement  may "be  implicit in  the            working relationship between the  parties that has never been            articulated  but nevertheless  amount  to  a  joint  criminal            enterprise."   United States v.  Moran, 984  F.2d 1299,  1300                           _____________     _____            (1st Cir. 1993).  In proving a conspiracy, the government may            rely entirely  on circumstantial evidence.   United States v.                                                         _____________            Ortiz, 966 F.2d 707,  711 (1st Cir. 1992), cert.  denied, 113            _____                                      _____________            S.Ct. 1005 (1993).  Once again, we think that the evidence of            Weiner's knowing complicity may  not be overwhelming but that            it was assuredly adequate.                 In this  case, there is no reasonable  doubt that Weiner            employed Oreto to collect  bank debts so the only  open issue            is whether Weiner  knew of the  means to be  employed.   Here            Weiner's connections  with  Oreto were  extensive, and  Oreto            operated from properties owned by Weiner or held in his name.            "Sid," "Sid, the bank" and "Sid Weiner" were mentioned in the            records  of the  loanshark  business,  and  Weiner  consulted            directly  with  Costa,  the  collection  manager,  about  the            Lambert  loan.   Weiner paid  Oreto with  off-the-record bank            funds, and  when the Wong parents threatened  to disclose the            forgery, Weiner took over the loan from the bank.                 This evidence  was sufficient to permit  a rational jury            to  conclude  beyond  a  reasonable  doubt  that  Weiner  was                                         -9-                                         -9-            conscious of the means  to be used by the  Oreto organization            and hired Oreto for  just that reason.  Weiner  testified and            offered the jury a  different interpretation of the evidence.            He  said   that  Oreto  was  hired  merely   to  locate  loan            defaulters, that  the payments to  Oreto were ordered  by the            bank president,  and that he  (Weiner) was  dismayed when  he            later learned  of Oreto's loansharking activities.   The jury            was entitled not to credit the thrust of this testimony.                 Weiner's  next objection concerns  the testimony  of FBI            Special Agent Raymond Stirling, whom the government called as            an expert  witness.  Stirling, a  specialist on loansharking,            reviewed the  accounting ledgers  and other documents  seized            from  the  Oreto  organization.     His  testimony  explained            transactions   reflected   in   the    documents,   loanshark            terminology,  and other matters of a  similar nature.  Expert            testimony is allowed pursuant to Fed. R. Evid. 702 if it will            help  the  jury to  understand the  evidence  or to  decide a            particular fact in issue in the case.  We have upheld the use            of  an  expert  witness  to  explain  matters  pertaining  to            loansharking.   United  States v.  Lamattina, 889  F.2d 1191,                            ______________     _________            1193-94 (1st Cir. 1989).                 Weiner  objects  to  one  aspect  of  the  testimony  in            particular.   Over objection,  Stirling testified that, based            on  documents  showing  the  same telephone  number  next  to            references in the records to "Sid," "Sid, the bank," and "Sid                                         -10-                                         -10-            Weiner," it was his  opinion that these persons were  one and            the same.    Weiner argues  that  this opinion  reflected  no            special expertise but  was a routine inference  that the jury            could draw on  its own.   We agree, but  regard the error  as            harmless.   The inference was compelling  that the references            (all  to  "Sid"),  together  with  identical  phone  numbers,            referred to the same  person.  Stirling's opinion "connecting            the dots" added little or nothing.                 Weiner next  contends that  the district court  erred in            its  treatment  of evidence  relating to  the counts  that it            dismissed  prior  to the  verdict.    As  earlier noted,  the            district court  directed judgments  of acquittal on  the mail            fraud  counts  and on  other  counts  charging conspiracy  to            collect other loans through extortion.  The dismissed counts,            involving other loanshark debtors, were  also incorporated in            the  RICO  counts as  predicate  acts of  racketeering.   The            district court entered verdicts  of acquittal on these counts            because in its view  the government had failed to  adequately            link Weiner to the charged activity.  Weiner   moved   for  a            mistrial,  alleging  prejudicial  spillover  of  the evidence            introduced to support the dismissed counts.The district court            denied  the motion  but agreed  to instruct  the jury  in the            closing charge to disregard  this evidence.  Although finding            the  evidence relevant  to  the remaining  RICO charges,  the            court ordered  the evidence  stricken and the  indictment re-                                         -11-                                         -11-            written  to  exclude  reference  to  the  corresponding  RICO            predicate acts because it thought the jury might otherwise be            confused about which  counts remained  in the case.   In  the            charge, the court neglected to instruct the jury to disregard            the stricken  evidence, and Weiner's lawyer  failed to object            to this omission.                 Weiner  now  argues that  the  district  court erred  in            denying his  motion for mistrial or,  alternatively, that the            judge  should have told the jury not to consider the evidence            relating to the dismissed counts.  The problem is that Weiner            was  not entitled  to have  this  evidence excluded  from the            jury's  consideration.    As  the  district  court  correctly            perceived,  evidence of  other  loan  collections by  Oreto's            organization  was  relevant  to the  remaining  RICO  charges            against Weiner, regardless  of whether Weiner was  personally            involved  in the racketeering  acts underlying  the dismissed            counts.  As the Second Circuit has explained in the analogous            context of severance:                      "[T]he    government   must    prove   an                      enterprise and a pattern  of racketeering                      activity as elements of a RICO violation.                      Proof of these  elements may well  entail                      evidence of  numerous criminal acts  by a                      variety of persons, and each defendant in                      a  RICO  case  may  reasonably  claim  no                      direct  participation  in  some of  those                      acts.    Nevertheless, evidence  of those                      acts  is relevant  to  the  RICO  charges                      against each  defendant . .  . because it                      tend[s] to prove the existence and nature                      of the RICO enterprise . . . ."                                                         -12-                                         -12-            United  States v. DiNome, 954  F.2d 839, 843  (2d Cir.), cert            ______________    ______                                 ____            denied,  113 S.Ct. 95 (1992).  Thus, despite the dismissal of            ______            the separate counts,  the jury was entitled  to consider this            evidence in support of the RICO counts.  Accord United States                                                     ______ _____________            v. Mitchell, 777  F.2d 248,  260 n.3 (5th  Cir. 1985),  cert.               ________                                             _____            denied,  476 U.S. 1184 (1986);  United States v. Morelli, 643            ______                          _____________    _______            F.2d 402, 412 (6th Cir.), cert. denied, 453 U.S. 912 (1981).                                      ____________                 Of course, the  evidence, although relevant, might  have            been overly prejudicial.  See Fed.  R. Evid. 403.  Of the few                                      ___            examples  cited   in  Weiner's  brief,  only   one  is  worth            mentioning:   In an  intercepted conversation played  for the            jury,  one of Oreto's operatives  says he should  "cut out" a            debtor's eyes.   The statement  is graphic, to  be sure,  but            extortion through threats of violence  is not a pretty crime.            "By  design, all evidence is  meant to be  prejudicial; it is            only unfair prejudice  which must be avoided."  United States                                                            _____________            v.  Rodriguez-Estrada, 877  F.2d  153, 156  (1st Cir.  1989).                _________________            Here, the evidence was  pertinent in depicting the nature  of            Oreto's organization; and, as  a mere threat, with  no actual            known victim, it assuredly did not overwhelm the jury.                 Finally, Weiner objects to  the district court's failure            to give  several instructions requested by Weiner  and to the            instruction  it  actually gave  on  the  elements of  a  RICO            offense.    One  request  was  for  a  "good faith  reliance"            instruction based on  Weiner's claim that  he hired Oreto  at                                         -13-                                         -13-            the direction of the bank president,  a retired state probate            judge.   The  instructions on  specific  intent given  by the            district  court were  sufficient;  no separate  "good  faith"            instruction was required.  See United States v. Dockray,  943                                       ___ _____________    _______            F.2d 152,  154-55 (1st  Cir. 1991).   Two  other instructions            sought, and  refused, aimed to refine  the extortion concept;            but one was  potentially misleading and  the other a  comment            upon the evidence.3                 Weiner's  challenge to the  RICO instruction is two-fold            and requires more  discussion.  Section  1962(c) of the  RICO            statute makes it  a crime  to conduct or  participate in  the            conduct of the affairs  of an enterprise affecting interstate            or  foreign  commerce  "through  a  pattern  of  racketeering            activity  or collection of unlawful debt."  18 U.S.C. 1962(c)                      __            (emphasis  added).     The three  predicate counts  for which            Weiner  was  convicted each  charged  extortion,  which is  a            racketeering act under the statute.  See 18 U.S.C.   1961(1).                                                 ___            Of  these three counts, one count (the usurious loan to Wong)            involved an unlawful debt as well.                                            ____________________                 3The requested charge that  "demands for money alone are            simply  not threats"  could easily  be misunderstood  to mean            that something more need be demanded; and the further request            that "any anxiety experienced by the four debtors . . . could            be ordinary  anxiety [of a debtor  called upon to pay]"  is a            comment on the evidence.  The fact that these statements were            made  by  appellate  courts  in  commenting  on  evidence  in            particular  cases   does  not  convert   them  into  required            instructions.                                         -14-                                         -14-                 The district court in this case instructed the jury that            RICO  liability   could  be  predicted  upon   a  pattern  of            racketeering activity or, alternatively, "upon the collection            of a single  unlawful debt, i.e.,  the single loanshark  debt                                        ____            owed  by Wong."  Weiner  takes issue with  the latter, quoted            portion of the instruction  because, he says, section 1962(c)            requires  a "pattern"  of collection  of unlawful  debts, and            this  precludes  RICO  liability  on the  basis  of  a single            instance of  collection of an  unlawful debt.   The objection            was duly presented  at trial.   Although one  might at  first            think  that  the  three  extortion  convictions automatically            showed  a   pattern  and   mooted  the  issue   of  statutory            construction,   the  government  (correctly)  makes  no  such            argument.4                   We turn, then, to  the construction of the statute.   If            one focused only on section 1962(c)'s language and structure,            one  might  well read  the  phrase  "pattern of  racketeering            activity or collection of  unlawful debt" and think that  the            word "pattern" modifies "collection of unlawful debt" as well            as "racketeering activity."  The imprecise wording of section            1962(c),  together  with the  rule  of  lenity in  construing                                            ____________________                 4The   "pattern"   offense   involves  requirements   of            connection between the offenses,  which need not be described            here, but  no such  requirements exist  if one  unlawful debt            collection is  enough.   Under the "single  debt" instruction            given by the court, it is possible (at least in  theory) that            the jury could have  made no finding of "pattern"  at all and            relied solely on the Wong debt.                                         -15-                                         -15-            criminal statutes, might  favor the  interpretation urged  by            Weiner  if our inquiry stopped with section 1962(c).  But the            matter becomes  more complicated, and the  opposite result is            suggested, when other parts of the statute are consulted.                 Section  1962(c),  although  the  most  commonly invoked            provision  of  RICO,  is  only  one  of  four  categories  of            proscribed  conduct.    Subsection   (a)  in  pertinent  part            prohibits  the use or  investment in an  enterprise of income            derived "from  a pattern of racketeering  activity or through                                                               __________            collection  of  an  unlawful  debt."   18  U.S.C.     1962(a)                            __            (emphasis  added).  Subsection (b) similarly makes it a crime            to acquire or maintain an  interest in an enterprise "through            a pattern  of racketeering activity or  through collection of                                                ___________            an unlawful  debt."  Id.    1962(b) (emphasis added).   It is            __                   __            thus clear that the  collection of a single unlawful  debt is            enough under subsections (a) and (b).    Weiner has suggested            no  reason why Congress might have intended that a single act            of collection suffice as  a source of criminal investment  or            to gain an  interest in  an enterprise   but that  criminally            conducting the enterprise's affairs required multiple acts of            collection.                    In addition, the term "pattern of racketeering activity"            is  defined  in  section  1961's  definitional provisions  as            requiring  at   least  two  acts   of  racketeering  activity            occurring within a  specified period  of time.   18 U.S.C.                                            -16-                                         -16-            1961(5).    But  there  is  no counterpart  definition  of  a            "pattern of collection of unlawful debt," as one would expect            if  such a  pattern were  an element  of one  of RICO's  core            provisions.   Instead, section  1961  simply lists  "unlawful            debt" which  is defined  as "a  debt" incurred  under certain            conditions, including  usury.  Id.    1961(6).   This further                                           __            confirms that section 1962(c) was unartfully drafted but must            be construed in pari materia with sections 1962(a) and (b).                         _______________                 The three  circuit courts to have  considered this issue            have  held  that  a single  collection  of  an unlawful  debt            satisfies section  1962(c)'s  "collection of  unlawful  debt"            requirement.  United States v. Giovanelli,  945 F.2d 479, 490                          _____________    __________            (2d Cir.  1991);  United States v. Vastola, 899 F.2d 211, 228                              _____________    _______            n. 21 (3d Cir.),  vacated and remanded on other  grounds, 497                              ______________________________________            U.S. 1001  (1990);  United States v.  Pepe, 747 F.2d 632, 645                                _____________     ____            (11th Cir. 1984).   Viewing the RICO  statute as a  whole, we            agree.   See also   H.J. Inc. v.  Northwestern Bell Telephone                     ________   _________     ___________________________            Co.,  492   U.S.  229,  232  (1989)   (stating  that  "[e]ach            ___            prohibited  activity  is  defined  in  18 U.S.C.     1962  to            include, as one necessary element, proof either of `a pattern            of racketeering  activity' or  of `collection of  an unlawful            debt.'").                   Lastly,  Weiner  contends  that  the   district  court's            instruction  on  the  type  of  participation  required under            section 1962(c) is  at odds with the Supreme Court's decision                                         -17-                                         -17-            in Reves  v. Ernst &  Young, 113 S.Ct. 1163  (1993), a recent               _____     ______________            case  decided after Weiner's trial.  In Reves, the Court held                                                    _____            that  the phrase  "to conduct  or participate  . .  . in  the            conduct"  of the  affairs of  a RICO  enterprise, as  used in            section  1962(c),   means  that   the  defendant  must   have            participated  in   the  "operation  or  management"   of  the            enterprise.  113 S. Ct. at 1170.                 In  this case the  jury was  instructed that  "the terms            `conduct' and  `participate' in the conduct of the affairs of            the  enterprise  include   the  intentional  and   deliberate            performance of acts, functions or duties which are related to            the operation  or management of  the enterprise."    Weiner's            objection, as we understand it, is that the word "include" in            the instruction  could suggest that lesser  conduct fostering            the enterprise in  any form is  enough to convict.   As  this            objection was not made  in the district court, we  review for            plain  error, see United  States v.   Georgacarakos, 988 F.2d                          ___ ______________      _____________            1289, 1294 (1st Cir. 1993), and we find none.5                   Aside from the word  "include," there is nothing  in the            instruction nor in any other part of the court's charge which                                            ____________________                 5Arguably, no  waiver should  be inferred, and  no plain            error requirement imposed,  where the Supreme  Court's ruling            comes  out of the blue  and could not  have been anticipated.            See  Castringano v. E.R. Squibb  & Sons, Inc.,  900 F.2d 455,            ___  ___________    _________________________            461 (1st Cir. 1990).   Here, however, Reves resolved  a split                                                  _____            between circuits (apparently the  First Circuit had not ruled            on the issue) so the objection could easily have been made at            trial.                                         -18-                                         -18-            suggests  that  something   less  than  involvement  in   the            operation  or management of the  enterprise will do.   And to            the extent  that the jury  was given specific  guidance, that            guidance  precisely  mirrored the  "operation  or management"            test subsequently  approved in Reves.   Plainly there  was no                                           _____            "miscarriage of  justice."  Georgacarakos, 988  F.2d at 1297.                                        _____________            We  think that the district court should be commended for its            prescience.                                         III.                 Because litigants stress only the material pertinent  to            their claims  on appeal, appellate courts  normally receive a            series of snapshots of a case rather than the full canvass of            the trial.  It may be true in Weiner's case that the evidence            showed only that he was  loosely confederated with Oreto, and            true  also that  a low level  of threat  was employed  in the            three debt  collections connected  to Weiner.   But by  their            very  nature criminal  conspiracies  are masked,  and  veiled            threats  are  the hallmark  of  intelligent  extortion.   The            outcome here was within the bounds of reason.                 Affirmed.                 ________                                         -19-                                         -19-
