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
as follows:
On cover sheet

this Court issued on

August 23, 1993, is

amen

under Attorneys' names "Mazer" should be correc

_______

to read "Mezer."
________
Dinisco should be corrected to read "DiNisco".
On page
_______
_________
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 Justi
______________
with whom A. John Pappalardo, United States Attorney, Ernest
___________________
_______
DiNisco, Assistant United States Attorney, and Todd E. Newhou
_______
_______________
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,
revolving
In

was

charged in

around loansharking

a multi-count

and illegal

indictment

debt collection.

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.

and conducting and
enterprise

conspiring to conduct

through

collection of

a pattern

of

unlawful debt,

894,

the affairs of

racketeering

in violation of

an

activity or
the Racketeer

Influenced and Corrupt Organizations Act ("RICO"), 18

U.S.C.

1962(c), (d).
Weiner's case
health,

and he

was severed

stood trial

government's case,

four counts

alone.1

the trial

for acquittal as to all of

for reasons relating

extortion.

counts

extortion conspiracy

894.

on the

The district court

Weiner's motion

to collect an

The jury

to violate,

acquitted Weiner

of the

the mail fraud counts and all but

conspiring
of

the close

court granted

charging conspiracy

credit through

At

to his

and

extension of

convicted Weiner

violating, RICO,
under 18

and of

U.S.C.

remaining count under

of

three
894; it

18 U.S.C.

then sentenced Weiner to a term of

two years' imprisonment. Weiner now appeals.

We affirm.

____________________
1Other
States
______
Cir.

defendants were

v. Oreto, appeals
_____

tried and

convicted in

pending, No. 91-1769,

United
______
et al., 1st

-2-2-

I.
The gist of
here, was
with a

the government's case, so far

that Weiner,

a bank official,

loanshark enterprise

that

new

enforcers using
position

sufficiency

debts were

properties
affairs.
of the

he

obtain

to pay off prior loanshark

collected

extortion; and that Weiner

and

enterprise's

bank

Frank Oreto, Sr.;

encouraged debtors to

bank loans, sometimes unlawfully,

debts;

associated himself

loanshark enterprise headed by one

that the

as pertinent

owned

Because

to

Weiner

by

loanshark

used his banking

facilitate
challenges

the
the

evidence, we summarize

the government's

Construed in a light

favorable to the

proof in some detail.

verdict, see United States v. Rivera-Santiano, 872 F.2d 1073,

___ _____________
_______________
1078-79 (1st

Cir.), cert. denied,

____________

492 U.S. 910

government's

evidence

the

permitted

jury

to

(1989), the
find

the

following.
In 1982, Weiner, a director, consultant and
of

Capitol Bank

and

Trust Company

of Boston

stockholder
("Capitol"),

hired Oreto to
made by

collect certain

Capitol.

loans in

Oreto headed a

loaned cash to borrowers

default that

were

loanshark operation

that

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
was

extortion conspiracy counts

convicted involved

Lambert,

debts

and Chun Hing "Joe" Wong.

obtained a

$2500 loan from

Lambert

to

instantly

Browder,

in the

amount of

Fred

paying kickbacks

to

Dandrow introduced Falzone and

Capitol

approved their loan

Frank Falzone,

Falzone and Lambert each

Capitol by

Fred Dandrow and Ron Browder.

checks

owed by

for which Weiner

loan

officer.

applications and

the loans.

Lambert

Browder
issued bank

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

held

the meeting,

responsible

secured

by

borrowers.

for

any

At a

Dandrow would

outstanding debt

kickbacks, and

Dandrow

agreed

on

met

weighs between 230-280 pounds,

with

Weiner

Oreto's collectors.

loans
the

Weiner did

Santiago is

and was described

by Dandrow as resembling "a motorcycle gang member."

later

be

introduced to "Beardsy" Santiago and

to bring Santiago to the borrowers' homes.

6'4" tall,

the

to contact

second meeting with Oreto which

not attend, Dandrow was

told

Oreto said that

and Dennis

Weiner

Petrosino,

told Dandrow

to

Dandrow

another
work

of
with

Petrosino in collecting the loans.

-4-4-

Dandrow went to Falzone's home,

and

Petrosino,

discuss repayment

and asked
of his

Falzone to
loan.

accompanied by Santiago
get

Inside the

inside a

car to

car, Petrosino

told Falzone that his loan "wasn't going to go away" and that
Falzone's parents would have
not come up

to pay the loan if

with the money.

Falzone did

Falzone testified that he

"pretty scared" and "just wanted to get out of the

another

occasion, Santiago drove

meeting

with Oreto,

payments at
Falzone

and Oreto

Falzone to

Gateway Rent-A-Car, a business

left the

meeting "scared"

payments at Gateway.

car."

a house

told Falzone to

was
On

for a

make weekly

owned by Weiner.

and made

two subsequent

Eventually Falzone's mother

contacted

Capitol to arrange a repayment schedule with the bank.

Lambert

first

came

into

organization after receiving a

go to Gateway Rent-A-Car.

to his home in

Winthrop to collect.

different

he

was visited

"big," "heavy" men.

men's car, Lambert

-5-5-

who

men who would come

Lambert

late

stopped making

When he later moved

one night

In a discussion

agreed to resume payment

$25 on the spot.

Oreto

Lambert began to make weekly

which he paid to Oreto's

to Winthrop,

the

he met "two big guys"

payments after he moved to another town.

back

with

phone call instructing him to

There,

said they "wanted their money."

payments of $25

contact

by

two

held in the

and handed over

When the payments later

a

meeting

with

Oreto

ceased, Lambert was summoned to

at the

business

owned by

Weiner.

payments

on a consistent basis.

his men scared him.

and

Oreto's

intercepted

Fasad's

nightclub,

Lambert thereafter

another

made weekly

He testified that Oreto and

The Lambert loan was discussed by Weiner

"collection

manager,"

telephone conversation.

Lambert had been located

John
When

Costa,

in

Costa said

and Costa proposed to "get

an
that

back in

action with him," Weiner approved this plan.

Wong obtained
Bank

("Community"),

Community

was later

gambling debts
Oreto

his loan from

Weiner

acquired by

which he

at weekly

repayments to

where

paid

interest

the Community

Capitol.

off by

rates of

Oreto were made

was

also

Cooperative
a

director.

Wong had

borrowing money
five

percent.

at Gateway Rent-A-Car.

heavy
from
Wong's
Wong

then obtained a $30,000

loan from Community in order

to pay

off his debt to

With Oreto's knowledge, Wong

put up

his

Oreto.

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
the loan.

When Wong fell

to make weekly payments

of $500 on

behind on his payments, Oreto sent

Petrosino
worked.

and

another

man

to the

restaurant

where

Wong

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

with a baseball bat."
wife

make

you up

Wong fled to New Hampshire and had his

further payments

eventually learned that

on

the problem,

the loan.

Wong's parents

a mortgage had been

house without their consent.

to report

pay . . . I can beat

placed on their

After they contacted Community

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

The seized records revealed

bank" paid part of

collection
addition

manager, for
to

hiring

the weekly salary

about

Oreto

38

weeks

to collect

that "Sid,

of Costa, Oreto's
in 1984-85.

bank

loans,

In
Weiner

allowed Oreto to conduct his loansharking business at Gateway

Rent-A-Car and
Weiner's

Fasad's

name.2

nightclub, both

Oreto

was Weiner's

properties held

silent partner

in

in the

ownership and operation of Fasad's.

II.
The

evidence

just

recited

government's

effort to

show that

violation of

18 U.S.C. 1984, to use

is

the

core

Weiner had

of

the

conspired, in

"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
Wong.

debts owed

Weiner

focusing on
includes
use,"

respectively by Falzone,

argues

that the

evidence was

the element of extortion.

"the use,"

of "violence

person or property.

or "an
or

express or

other criminal

18 U.S.C.

891(7).

Lambert and
insufficient,

"Extortionate means"
implicit threat
means"

to harm

Weiner argues

of
any
that

the evidence

did

not permit

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;

directed to get

and that

Falzone and

into a car to discuss

Lambert were

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.

with a

As for

Wong, Oreto's statement

about a beating

baseball bat is about as plain and direct a threat as

one can imagine.

-8-8-

A rational jury could

doubt that
through

also conclude beyond a reasonable

Weiner knowingly

extortion.

conspired to collect

An agreement

working relationship between the

articulated

but nevertheless

enterprise."

rely entirely

implicit in

the

parties that has never been

amount

United States v.
_____________

(1st Cir. 1993).

may "be

the debts

to

Moran, 984
_____

joint

criminal

F.2d 1299,

1300

In proving a conspiracy, the government may

on circumstantial evidence.

Ortiz, 966 F.2d 707,

_____
S.Ct. 1005 (1993).

United States v.
_____________

711 (1st Cir. 1992), cert. denied, 113

_____________
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

employed Oreto to collect

is whether Weiner

bank debts so the only

knew of the

Weiner's connections

doubt that Weiner

with

means to be

Oreto were

open issue

employed.

Here

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

directly

with

Lambert

loan.

funds, and

loanshark
Costa,

the

Weiner paid

business,

and

collection

Weiner

manager,

Oreto with

consulted
about

the

off-the-record bank

when the Wong parents threatened

to disclose the

forgery, Weiner took over the loan from the bank.

This evidence
to

conclude

beyond

was sufficient to permit

a

reasonable

doubt

a rational jury
that

Weiner

was

-9-9-

conscious of the means

and hired Oreto for
offered the jury a
He

said

that

bank president,
later learned

just that reason.

Oreto organization

Weiner

testified and

different interpretation of the evidence.

Oreto

defaulters, that

to be used by the

was

hired

merely

the payments to
and that he

to

locate

Oreto were ordered

(Weiner) was

loan
by the

dismayed when

of Oreto's loansharking activities.

he

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.

reviewed the
from

the

terminology,

specialist on loansharking,

accounting ledgers

Oreto

transactions

Stirling, a

and other documents

organization.

reflected

in

His
the

and other matters of a

testimony
documents,

seized

explained
loanshark

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.

of

an

expert

witness

loansharking.

to

explain

United States v.
______________

We have upheld the use

matters

pertaining

Lamattina, 889
_________

to

F.2d 1191,

1193-94 (1st Cir. 1989).

Weiner

objects

particular.
on

to

one

aspect

Over objection,

documents

showing

the

of

the

testimony

in

Stirling testified that, based

same telephone

number

next

to

references in the records to "Sid," "Sid, the bank," and "Sid

-10-10-

Weiner," it was his

the same.

opinion that these persons were

Weiner argues

special expertise but

could draw on
harmless.
(all

to

that

this opinion

was a routine inference

its own.

We agree, but

The inference was compelling

"Sid"),

together

referred to the same

with

person.

one and

reflected

no

that the jury

regard the error

as

that the references

identical

phone

numbers,

Stirling's opinion "connecting

the dots" added little or nothing.

Weiner next

contends that

the district court

erred in

its

treatment

dismissed

prior

district court
fraud

of evidence

counts

to the

relating to

verdict.

As

directed judgments
and on

other

the counts

earlier noted,

of acquittal on

counts

that it
the

the mail

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

district court entered verdicts

because in its view

alleging

The

of acquittal on these counts

the government had failed to

link Weiner to the charged activity.

mistrial,

racketeering.

prejudicial

Weiner

spillover

adequately

moved
of

for

the evidence

introduced to support the dismissed counts.The district court

denied

the motion

but agreed

closing charge to disregard

the

evidence relevant

court ordered

to

the evidence

to instruct

the jury

this evidence.
the remaining

in the

Although finding
RICO charges,

stricken and the

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
denying his
judge

now

argues that

the

district

motion for mistrial or,

in

alternatively, that the

should have told the jury not to consider the evidence

relating to the dismissed counts.

was

court erred

not entitled

jury's

to have

consideration.

perceived,

evidence of

organization

was

As

counts.

evidence excluded

the

other

relevant

against Weiner, regardless

involved

this

The problem is that Weiner

district

loan

to the

court

correctly

collections by
remaining

RICO

of whether Weiner was

in the racketeering

from the

acts underlying

Oreto's
charges

personally

the dismissed

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

denied,
______

Thus, despite the dismissal of

113 S.Ct. 95 (1992).

the separate counts,

the jury was entitled

evidence in support of the RICO counts.

v. Mitchell, 777
________
denied,
______

F.2d 248,

to consider this

Accord United States

______ _____________

260 n.3 (5th

476 U.S. 1184 (1986);

(2d Cir.), cert

____

Cir. 1985),

cert.
_____

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

been overly prejudicial.

examples

cited

mentioning:
jury,

in

In an

See Fed.
___

Weiner's

brief,

The statement

design, all evidence is

only unfair prejudice

v.

one

says he should
is graphic, to

extortion through threats of violence

"By

only

Of the few
is

intercepted conversation played

one of Oreto's operatives

debtor's eyes.

R. Evid. 403.

meant to be

F.2d

worth
for the

"cut out" a
be sure,

but

is not a pretty crime.

prejudicial; it is

which must be avoided."

Rodriguez-Estrada, 877
_________________

have

153, 156

United States
_____________

(1st Cir.

1989).

Here, the evidence was

pertinent in depicting the nature

Oreto's organization; and, as

a mere threat, with

of

no actual

known victim, it assuredly did not overwhelm the jury.

Finally, Weiner objects to
to give

the district court's failure

several instructions requested by Weiner

instruction

it

offense.

One

actually gave
request

instruction based on

was

on

the

for

and to the

elements of
"good faith

Weiner's claim that

RICO

reliance"

he hired Oreto

at

-13-13-

the direction of the bank president,

judge.
district

The

instructions on

court were

F.2d 152,

154-55 (1st

specific

sufficient;

instruction was required.

a retired state probate

intent given

no separate

"good

by the
faith"

See United States v. Dockray,

___ _____________
_______

Cir. 1991).

Two

sought, and

refused, aimed to refine

but one was

potentially misleading and

943

other instructions

the extortion concept;

the other a

comment

upon the evidence.3

Weiner's

challenge to the

RICO instruction is two-fold

and requires more

statute makes it

discussion.
a crime

conduct of the affairs

or

foreign

activity

to conduct or

was

added).

RICO

participate in

the

of an enterprise affecting interstate

"through

pattern

The three

convicted each

of

racketeering

18 U.S.C. 1962(c)

predicate counts

charged

racketeering act under the statute.

Of

1962(c) of the

or collection of unlawful debt."

__

(emphasis
Weiner

commerce

Section

extortion,
See 18 U.S.C.
___

for which
which is

1961(1).

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

pattern

of

racketeering activity or, alternatively, "upon the collection

of a single
owed

unlawful debt, i.e.,

____

by Wong."

Weiner

takes issue with

portion of the instruction

requires
this

a "pattern"

precludes

instance of

think

that

showed

liability

collection of an

the

pattern

construction,

the

of unlawful

on the

basis

Although one

extortion

and

the latter, quoted

unlawful debt.

at trial.
three

debt

because, he says, section 1962(c)

of collection

RICO

was duly presented

the single loanshark

mooted

government

debts, and
of

a single

The objection
might at

first

convictions automatically
the

issue

(correctly)

of
makes

statutory
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

activity or collection of

phrase

"pattern of

racketeering

unlawful debt" and think that

the

word "pattern" modifies "collection of unlawful debt" as well

as "racketeering activity."
1962(c),

together

with the

The imprecise wording of section

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

Weiner

favor the

interpretation urged

if our inquiry stopped with section 1962(c).

matter becomes

more complicated, and the

by

But the

opposite result is

suggested, when other parts of the statute are consulted.

Section
provision

1962(c),

of

RICO,

is

proscribed

conduct.

prohibits

the use or

derived "from
collection
(emphasis

although
only

an unlawful
__

one

Subsection

most
four

(a)

in

an
__

added).

unlawful

debt."

categories
pertinent

of
part

enterprise of income

a pattern of racketeering

of

commonly invoked

of

investment in an

18

activity or through
__________
U.S.C.

1962(a)

Subsection (b) similarly makes it a crime

to acquire or maintain an
a pattern

the

interest in an enterprise "through

of racketeering activity or through collection of

___________
debt."

thus clear that the

Id.
__

1962(b) (emphasis added).

collection of a single unlawful

enough under subsections (a) and (b).

It is
debt is

Weiner has suggested

no

reason why Congress might have intended that a single act

of collection suffice as
to gain an

interest in

a source of criminal investment

an enterprise

but that

or

criminally

conducting the enterprise's affairs required multiple acts of

collection.
In addition, the term "pattern of racketeering activity"
is

defined

requiring

in
at

section
least

occurring within a

1961's

two

definitional provisions

acts

of

specified period

racketeering
of time.

as

activity

18 U.S.C.

-16-16-

1961(5).

But

there

is

no counterpart

definition

of

"pattern of collection of unlawful debt," as one would expect

if

such a

provisions.
debt" which

pattern were

an element

Instead, section
is defined

conditions, including

as "a
usury.

1961

of one

simply lists

debt" incurred
Id.
__

of RICO's

1961(6).

core

"unlawful

under certain
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
have

held

circuit courts to have

that

a single

satisfies section
requirement.
(2d Cir.

collection

1962(c)'s

considered this issue

of

an unlawful

debt

unlawful

debt"

"collection of

United States v. Giovanelli,

_____________
__________

945 F.2d 479, 490

1991);

United States v. Vastola, 899 F.2d 211, 228

_____________
_______

n. 21 (3d Cir.),

vacated and remanded on other grounds, 497

______________________________________

U.S. 1001

United States v.
_____________

Pepe, 747 F.2d 632, 645

____

(11th Cir. 1984).

Viewing the RICO

statute as a

agree.

H.J. Inc. v.
_________

Co.,
___

(1990);

See also
________
492

prohibited

U.S.

229,

activity

232
is

whole, we

Northwestern Bell Telephone

___________________________

(1989)

defined

(stating
in

that

18 U.S.C.

"[e]ach
1962

to

include, as one necessary element, proof either of `a pattern

of racketeering

activity' or

of `collection of

an unlawful

debt.'").
Lastly,
instruction

Weiner
on

the

section 1962(c) is

contends

that

type

participation

of

the

district

court's

required under

at odds with the Supreme Court's decision

-17-17-

in Reves
_____

v. Ernst & Young, 113 S.Ct. 1163

______________

case

decided after Weiner's trial.

that

the phrase

"to conduct

conduct"

of the

affairs of

section

1962(c),

means

participated
enterprise.
In

in

In Reves, the Court held

_____

or participate
a RICO

that

. in

enterprise, as

the

"operation

. .

or

defendant

used in

must

management"

the

have
of

the

113 S. Ct. at 1170.

this case the

`conduct' and
the

the

(1993), a recent

jury was

instructed that

"the terms

`participate' in the conduct of the affairs of

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

the enterprise in

any form is

objection was not made

plain

conduct fostering

enough to convict.

in the district court, we

error, see United States v.

___ ______________

As

this

review for

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

operation

that the jury

precisely

test subsequently
"miscarriage of
We

less

or management of the

the extent
guidance

something

than

enterprise will do.

was given specific

mirrored the

"operation

approved in Reves.
_____
justice."

involvement

the
And to

guidance, that
or management"

Plainly there

Georgacarakos, 988
_____________

in

was no

F.2d at 1297.

think that the district court should be commended for its

prescience.
III.
Because litigants stress only the material pertinent
their claims

on appeal, appellate courts

to

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

true

also that

three debt
very

a low level

of threat

collections connected

nature criminal

threats

loosely confederated with Oreto, and

are

conspiracies

the hallmark

of

was employed

to Weiner.
are masked,

intelligent

outcome here was within the bounds of reason.

Affirmed.
________

-19-19-

in the

But by

their

and

veiled

extortion.

The