Defendant Salvatore Merlino argues that the evidence against him as to racketeering act eleven (conspiracy and attempted murder of Robert Riccobene) was insufficient to sustain a verdict of guilt. In pages twenty-three through twenty-nine of its brief, the government cites to repeated testimonial evidence which clearly supports the verdict. It is obvious from their citations to the record that a jury could conclude that defendant Merlino played an ongoing role in the effort to locate and murder Robert Riccobene. The testimony suggested that on several occasions, he met with other coconspirators to discuss plans to kill Riccobene. For example, on one occasion, according to the testimony of Nicholas Caramandi, defendant Merlino was parked in a car on the corner of 10th and Moore prepared to kill Robert Riccobene. (Tr. 10/27/88 at 58-59). Caramandi testified to several other occasions during which Merlino engaged in plans to kill members of the Riccobene faction. (Tr. 10/27/88 at 53-60); (Tr. 10/11/88 at pp. 13-18). Given the obvious sufficiency of this evidence, defendant's motion is denied.
Defendant Nicholas Virgilio argues that the government presented insufficient evidence of his involvement in racketeering acts twenty-four and twenty-five, the extortions committed as part of the Philadelphia LCN's shakedown operation, and thus his convictions on the substantive RICO count can not be sustained. Virgilio argues that the evidence failed to link him to the extortions or prove his criminal knowledge, intent, or conduct. We disagree.
According to the evidence, Virgilio had a longstanding relationship with Nicodemo Scarfo. When Scarfo was a mob soldier, Virgilio and Scarfo joined together to murder Judge Edwin Helfant. (Tr. 10/10/88 at 129, 133-35). Later, when Scarfo took over as the mob's leader, Virgilio became a "made" member of LCN. (Tr. 10/10/88 at 140). Virgilio was also closely tied to mob underboss, Phil Leonetti. (Tr. 10/12/88 at 39).
In the same year that Virgilio joined the Philadelphia mob, Scarfo instituted a widespread shakedown operation that was financially rewarding to both mob soldiers and supervisors. Scarfo approved the implementation of a mafia "street tax" upon individuals involved in criminal activity who were not "connected" with LCN members. The shakedown operation relied upon force and threats to collect substantial revenue from hundreds of victims. (Tr. 10/27/88 at 113-19); (Tr. 10/12/88 at 36, 47-49); (Tr. 10/27/88 at 117, 127-28).
In addition, the shakedown operation was extremely notorious on the streets of Philadelphia. (See Gov. Ex. 1346, 1347, 1348, 1349, 1358; Tr. 10/12/88 at 105, 114-28; Ex. 1303, 1319, 1320, 1309, 1311, 1312, 1313). Several groups of mafia members formed shakedown crews, and the mob imposed and enforced the street tax in a manner intended to convey to the criminal community its power and ubiquity. For example, when Lou Turra refused to pay the street tax and did not demonstrate the proper respect for the Mafia, seven mobsters publicly beat up Turra on a busy street in the Society Hill section of Philadelphia. (Tr. 10/12/88 at 77-79). Scarfo approved and encouraged the beating. (Tr. 10/12/88 at 78).
Although Virgilio may not have directly participated in the shakedowns, he did receive a portion of the funds for performing errands or jobs for Scarfo. (Tr. 10/12/88 at 66-68). The shakedown money that was delivered to Scarfo was clearly identified as such and had a slip with the notations of "Elbow" and "Extra" to designate that the revenue came from shakedowns. (Tr. 10/12/88 at 70-71); (Tr. 10/28/88 at 10-24). The evidence is overwhelming that Virgilio knew how his income was generated. He had a longstanding relationship with Scarfo and Leonetti, (see e.g., surveillance photos Ex. G-607, 608, 615, 616, 618, 635, 636, 637, 638, 639, 647, 650, 655, 692, 693, 699, 715, 761, 797, 798, 799, 802), and joined an organization whose objectives were clearly criminal. The shakedown operation was the centerpiece of Scarfo's lucrative criminal enterprise. Under such circumstances, the jury could reasonably conclude that Virgilio was an participant in the shakedown operation. See United States v. Martorano, 557 F.2d 1, 8 (1st Cir. 1977) (defendant collected interest payments for loanshark; jury could conclude that defendant was more than errand boy and was part of operation), cert. denied, 435 U.S. 922, 55 L. Ed. 2d 515, 98 S. Ct. 1484 (1978).
Virgilio's participation in the extortionate activity constitutes a violation of the crime of extortion under Pennsylvania law and a predicate offense under the RICO statute. Section 1961 of the federal RICO statute defines racketeering activity as "Any act or threat involving . . . extortion which is chargeable under state law and punishable by imprisonment for more than one year." "Involving" has long been construed rather broadly by the Third Circuit and other Circuit courts. For example, in United States v. Forsythe, 560 F.2d 1127, 1134-35 (3d Cir. 1977), the court held that "to interpret state law offenses to have more than a definitional purpose would be contrary to the legislative intent of Congress and existing state law." See also United States v. Manzella, 782 F.2d 533, 537 (5th Cir.) ("involving" language of RICO allows for conspiracy to commit arson to constitute predicate act even though only "arson" is explicitly mentioned in the RICO statute), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672, 106 S. Ct. 1991 (1986); United States v. Ruggiero, 726 F.2d 913, 919 (2d Cir.) (conspiracy to commit murder is an act or threat involving murder), cert. denied, 469 U.S. 831, 83 L. Ed. 2d 60, 105 S. Ct. 118 (1984). "Chargeable under state law" means that the offense must be one that generically was chargeable under state law at the time it was committed. See United States v. Qaoud, 777 F.2d 1105, 1118 (6th Cir. 1985), cert. denied, 475 U.S. 1098, 89 L. Ed. 2d 899, 106 S. Ct. 1499 (1986); United States v. Frumento, 563 F.2d 1083, 1087 (3d Cir. 1977) (reference to state law is necessary only to identify the type of unlawful activity in which the defendant intended to engage), cert. denied, 434 U.S. 1072, 55 L. Ed. 2d 775, 98 S. Ct. 1256 (1978).
The indictment charges racketeering acts twenty-four and twenty-five as violations of 18 Pa. Con. Stat. Ann. § 3923 (Purdon 1983), Theft by Extortion, a felony punishable by more than one year imprisonment. Virgilio does not dispute that the monies collected from John Hartung and Jerry Slobotkin, the victims in racketeering acts twenty-four and twenty-five, were obtained by Virgilio's codefendants and coconspirators through extortionate means as part of the shakedown operation. The provisions of the Pennsylvania Crimes Code provide that this extortion is a type of theft. Therefore, these street tax collections are extortions by theft and the knowing receipt of these monies renders the recipient, such as Virgilio, guilty of receiving stolen property under Pennsylvania law. See 18 Pa. Cons. Stat. Ann. § 3925 (Purdon 1983). Under the Pennsylvania law consolidating theft, see 18 Pa Cons. Stat. Ann. § 3902 (Purdon 1983), and Commonwealth v. Lewis, 299 Pa. Super. 367, 445 A.2d 798, 800 (1982), Virgilio is as guilty of an act involving extortion in receipt of the extorted monies as the individuals who personally committed the extortionate act.
Thus, the evidence was sufficient to sustain a guilty verdict as to racketeering acts twenty-four and twenty-five, and the substantive RICO count. Defendant's motion is denied.
Virgilio also challenges his conviction under the RICO conspiracy count.
The Third Circuit defined the elements of a RICO conspiracy in United States v. Adams, 759 F.2d 1099 (3d Cir.), cert. denied, 474 U.S. 906, 88 L. Ed. 2d 236, 106 S. Ct. 275 (1985). The Court held that to convict under RICO conspiracy, a defendant need not agree to commit personally the predicate acts alleged in the indictment. Rather, the defendant must agree that some conspirator, not necessarily the defendant himself, would commit two or more predicate acts. Id. at 1116. To establish guilt under the RICO conspiracy charge, the government has to introduce evidence that the defendant agreed to join the enterprise or participate in the affairs of the enterprise and agreed to the commission, by some conspirator, of at least two predicate acts. In concluding that the defendant does not have to agree personally to commit the predicate acts, the Third Circuit was persuaded by the express language and the Congressional history of the statute:
We are particularly impressed by the analysis of Judge Johnson in United States v. Carter, 721 F.2d  at 1528-31 [(11th Cir.1984)] and adopt that reasoning as our own. As the Eleventh Circuit noted, the statutory language itself does not require the personal commission of predicate offenses. "When read together, the statutes speak only to 'conspiring to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity, i.e., two acts of racketeering activity within at least ten years of each other.'" Id. at 1529. Moreover, requiring the government to prove that each defendant agreed to commit personally two predicate acts would severely dilute the effectiveness of the RICO conspiracy remedy, and thwart Congress's objectives in enacting those statutes. See id.; United States v. Local 560, International Brotherhood of Teamsters, 581 F. Supp. 279, 331 (D. N.J. 1984).