November 8, 1994
No. 91-1769
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK ORETO, SR.,
Defendant, Appellant.
____________________
No. 91-1770
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK ORETO, JR.,
Defendant, Appellant.
____________________
No. 91-1771
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS PETROSINO,
Defendant, Appellant.
____________________
CORRECTED ERRATA SHEET
CORRECTED ERRATA SHEET
The opinion of
amended as follows:
this Court
issued on
Sheet, line
October 4,
1994, is
Change
the name
5:
Page 3, line 11: After the number "894" add the words "(the
extortionate credit transactions or "ECT" statute)".
Page 8, line
"additional".
12:
Add
line 8:
"an"
before
the
word
the word
Substitute "
the
word
after
the
word
v.
FRANK ORETO, SR.,
Defendant, Appellant.
____________________
No. 91-1770
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK ORETO, JR.,
Defendant, Appellant.
___________________
No. 91-1771
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS PETROSINO,
Defendant, Appellant.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court
as follows:
Page 2 of the Cover
"DiNisco".
Page 3, lines 9-10:
issued on October 4,
Sheet, line 5:
1994, is amen
the words
"(
Substitute "
25:
29, line
Replace the
words "Hobbs
Act" with
1892,".
wo
Delete the
quotation
marks after
the w
the
words "`Bible'
and Daniel"
DENNIS PETROSINO,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. David S. Nelson, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Assistant
States.
United
___________________
States Attorneys, were on
____________________
October 4, 1994
____________________
________________
brief for the Uni
Frank Oreto,
challenge their
loansharking ring
operating in
Revere,
Massachusetts.
We
affirm.
The
appellants
I.
BACKGROUND
were
charged
in
June
1987
offenses involving
the making
credit
18 U.S.C.
and
loans or
or "ECT"
statute).
The
an
1962, as well
of extortionate
transactions
parties to
in
The structure
of the charges is of
some importance.
Count 1 alleged a RICO
indicted
defendants.
The
specific
instances of
extortionate
transactions
specific
alleged predicate
in violation of 18
instances
of usurious
lending
U.S.C.
lending
acts were
or
892,
as
the
74
collection
894, and 62
___
defined in
18
U.S.C.
1961(6).
defendants
Count 2
charged
with a substantive
each
of
74
the indicted
RICO violation
each of
and realleged
extortionate
lending
or
collection
-7-7-
violate 18 U.S.C.
76-82 involved
against indicted
formed
substantive
counts.
was named in
the
basis
for
RICO offense,
Oreto,
Jr., and
most of
the
the 74
RICO
and the
statute
of
the 74
conspiracy
conspiracy,
74 separate
transactions
counts.
All
transactions
and
ECT statute
named in
the
and in a limited
the corresponding
three
the
of the
ECT
appellants
of
the
defendants
named in
17
(1st
disappeared from
briefs;
at least
tried
government
1993).
the
case for
one pleaded
together
Several
reasons
other
in a
wiretap
was
guilty and
143-day
records
in
the
testified against
trial.
of loans
recordings,
defendants
not stated
offered seized
court-authorized
indictment
Cir.
trial.
the
and
in this
case
At trial
the
and borrowers,
testimony
by
-8-8-
cooperating
light most
So viewed,
find the
following.
Oreto,
reasonable jury to
Sr. headed an
enterprise which
three to
seven percent.
of from 156
annually.
Jr. and
them
Mass. Gen.
Over two
asserting
rates
to 364 percent;
in Massachusetts, by contrast, is
percent
operation.
Those weekly
49.
Sr.
and
Oreto,
that Oreto,
20
various of
his accomplices
used
loansharking business
locations in or
was
conducted from
various
Jr.,"
and
"Dennis"
were listed
among
to testimony
by borrowers
those
who
given over
corroborated by
-9-9-
in the
record as between
pounds
in
weight--to
6'1" and
call
upon
threaten them--implicitly or
if
the
loans
were not
6'2" tall
and over
250
delinquent borrowers
and
explicitly--with physical
repaid.
At
least two
harm
witnesses
and
many
more borrowers
testified
that
they
make
their payments.
The jury convicted each
of conspiring to violate
as
one
RICO, 18 U.S.C.
substantive RICO
count. 18
1962(d),
U.S.C.
count
as well
1962(c).
In
counts of
three
making extortionate
loans, 18
The jury
also
convicted
Oreto, Jr.
U.S.C.
At
later
892; and
extortionate loans.
on
four
894; ten
counts,
Id.
___
and
collect loans by
date, Oreto,
Sr.
was
with 15
year sentences
but consecutively to
on the
individual ECT
a life sentence
he was
Oreto, Jr.
10 years
imprisonment, respectively,
6 years
on each
count of
-10-10-
conviction, with
all sentences
to run concurrently.
These
appeals followed.
II.
Appellants' first
prejudiced
by
argument on appeal is
prosecutorial
misconduct involving
in-court
indication of
such misconduct
identification.
"Dennis"
asked
Doherty had
Dennis,
United
to identify
March 29,
occurred on
The
testified
that
one occasion at
Doherty
an in-court
a man
named
erroneously pointed
to
Oreto, Jr.
On cross-examination, Doherty testified that he had been
told
prior to
wished
him
entering
to
arrangement
the courtroom
identify
of the
the
prosecutors at
have
arisen from
Petrosino, and
appellants at
that the
that
government
the
their counsel
seating
tables had
the
Doherty's confusion
fact that
there
appears to
was more
than
one
at a different table.
mistrial and
-11-11-
At a hearing beginning
FBI agent
prior to
done ostensibly
the purpose
the courtroom.
of reducing
the
witnesses'
courtroom
seating
nervousness
layout.
The
by
familiarizing
agent also
Gazza,
who had
testified
Oreto,
Sr., and
the
them
with
the
admitted conveying
the
witnesses.
prior to
other was
Doherty and
Michael
identified
DiCarlo, whom
the
known where
Filipowich, who
who
experience
of
the defendants
Oreto,
that he had
would be
identified Oreto,
identified both
however, said
knew
Sr., and
Sr. and
Ronald
Frank Anderson,
Petrosino.
such knowledge
as a police officer,
sitting:
Anderson,
only because
his
courtroom.
Later on,
in
May 1990,
an additional
witness, Dennis Willcox, admitted that the FBI agent had told
him the
earlier.
courtroom seating
arrangements two or
Willcox, however,
was
never
three months
asked to
identify
anyone.
Following
the
hearing,
the
district
court
denied
-12-12-
district court's
similar
instruction.
objections
to
this
final charge
The
court
instruction,
to
the jury
rejected
as
well
the
as
included a
defense's
alternative
Appellants
now contend
required a mistrial.
that
the government's
conduct
-13-13-
court's
of discretion.
3 (1st Cir.
revelation
of
The
defendants'
identification witnesses
(1991).
seating
was improper.
arrangements
It
to
argues, however,
were told
evident
"staged"
Oreto,
that
of the
seating arrangement.
Petrosino
identifications:
Jr.
as
Petrosino
was
not harmed
by
It
is equally
the
allegedly
Doherty's misidentification
can
have
only
undermined
of
the
identification
Anderson--occurred
connection
of
with
Petrosino--by
count
upon
in
which
Petrosino
was
not
Sr.
present a
slightly
convicted.
The identifications
of Oreto,
Four of
tainted
witnesses pointed out Oreto, Sr. for the jury, and Oreto, Sr.
was
convicted on
witnesses
whether
three of
testified.
the
suggestive,
the four
counts to
This
court must
identification
procedure
and, if
nonetheless reliable
so,
whether the
which those
therefore determine
was
impermissibly
identifications
were
circumstances.
E.g.,
____
-14-14-
latter issue,
Oreto, Sr.
we conclude
that the
On
identifications of
and the curative
witness who
crime--has
been
identification
procedures.
by
perpetrator of
improperly
See Neil
___ ____
suggestive
v. Biggers,
_______
409 U.S.
bolstered
corroborated
by
by
These dealings
the government.
had made
opportunity to explore
the defects in
the
inquiry
identification
into
"continuing
process" by
the
improperly
misconduct
government.
in
the
Specifically,
they argue that the court should have ordered Doherty, Gazza,
Anderson, and
hearing
Filipowich to
in order
to
return to
determine whether
the stand
any
after the
part of
their
-15-15-
they
would have
testimony,
over
asked these
and
witnesses during
above
the
such further
thorough cross-examination
assistant United
hearing.
Appellants
complain
that
at the
second
to testify.
This
testimony appears
to
have been
witnesses.
asked us,
ities
in
witness
sitting.
the defense's
was
told
favor
exactly
and
assume
where each
that each
defendant
would
such
be
given
next
by
say
several
that
the
witnesses
similar
wording
regarding the
in
fear
Several
Appellants
-16-16-
number
different
of other
formulations,
witnesses testified
and
the
fear
stated
Costa, a manager
in an
using entirely
element
was
intercepted
conversation with
actually been
adequate
employed
opportunity
Similar-
against them.
on
John
that he was
amply
The
defense had
cross-examination to
explore
an
any
as
trial
witnesses
identification
a trial
witness, a
about
defendant
misconduct
must
Here,
testify
process.
"compelling need"
as
to
step that
in
establish
the
a
call a prosecutor
will usually
require the
U.S. 845
the suggestive
(1990).
identifications
sufficient.1
____________________
1When the prosecutor testified at the April 2 hearing,
he disclosed that Doherty had described the individual named
"Dennis" who visited him at work--allegedly, Petrosino--as
large, dark-haired and "Irish looking."
Petrosino argues
that the government violated Brady v. Maryland, 373 U.S. 83
_____
________
-17-17-
Appellants
arguments
to the
further
contend
jury, one
of the
that,
in
his
closing
prosecutors effectively
testified
cations,
gentlemen.
himself by
"Nobody
saying,
attempted
Nobody lied."
as to
to
the tainted
cover
it
up,
identifiladies
and
defense's
repeated
government misconduct
attempts
and
make it
to
magnify
the
the focus
alleged
of the
case.
defense counsel.
United States
_____________
to specific
v. Machor,
______
879
(1990).
At the close of the
proposed
regarding
process.
instructions
government
be
given
misconduct
in
by
the
the
trial
court
identification
you as reflecting an
defendant.
. . . .
You must consider the number and extent of efforts
to change or influence witnesses' testimony. To do
this, you must evaluate the testimony of each witness in this case, deciding whether any tampering
may have affected each and every identification as
well as any other evidence you have heard or reviewed during
the trial.
Evidence of such
tampering alone may create a reasonable doubt of
the defendant's guilt.
A second proposed instruction concluded by stating that "[i]f
such
government misconduct
adduced in support
reasonable doubt
of this
of guilt
together
with
any other
defense creates in
of these
facts
your mind
must
the proposed
primarily or
by the government.
solely on
Here, as in
up the theory, if
jury to
the basis
of
an earlier case
United States
_____________
v. Silvestri, 790 F.2d 186, 192 (1st Cir.), cert. denied, 479
_________
U.S.
____________
857 (1986).
favorite strategy
Putting the
of
defense
government
counsel, but
on trial
it
to the
jury.
See
___
is
is
not
a
an
to have the
United States
_____________
v.
-19-19-
of
the
ECT
statute
counts
charged
individual
to
collect
Appellants now
such
extensions
claim that
convicted of multiple
by
extortionate
ECT statute
means.
charged and
conspiracies, whereas
in
reality
there were
no distinct
agreements separate
from a
United
______
on
the
evidence
conspiracies charged,
warranted.
precludes
presented
find
then a judgment of
the
acquittal would be
multiple
the jury.
evidence
United States v.
_____________
that burden.
Much of
directed to
does
no more
the trial
was consumed by
individual transactions.
with the
evidence than
-20-20-
government evidence
The appellants' brief
point
to connections
between
the credit
methods,
common
transactions,
overlap of
personnel,
locations.
including
a general
These factors
that
the
individual
not
find
conspiracies:
time frame,
might have
jury
jury could
similarity
and
justified the
the requisites
a specific
of
of
agreement,
smaller
and
the
appellants'
government
brief
counsel to
quotes
the jury,
from
statements
arguing that
by
the evidence
charged in count 1.
But the
requirements for a
whether the
transaction or
one that
Here
no
there is
that--in
latter relates to
embraces a number
inconsistency in
addition to
the
RICO
a single
of transactions.
the government
arguing
conspiracy--individual
ECT
branch of appellants'
is an attack on
even
if
the
conspiracies, the
set
permitted
Appellants
finding
multiplicity argument
of
say that
separate
instructions that
as reflected in proposed
-21-21-
12A and
23--are lengthy
and overlapping;
the former is concerned with RICO and the latter with the ECT
statute.
In substance,
the
jury
to
each of
determine
two
or
more
asks
charged
conspiracies are really the same offense"; both set forth the
multiple
"that the
were not
multiple conspiracies
separate and
distinct."
charged
in the
One of
v. Gomes-Pabon, 911
___________
the instructions
(1st
which discussed
various procedural
to charge a single
defendants often
uncharged)
courts
of
may
then
charge, inviting
the large
large conspiracy.
claim that,
conspiracies
at worst, only
existed.
give
the jury
conspiracy has
advantages
Where
so-called
not been
In turn, the
smaller (often
requested, trial
multiple
to consider the
W.
Loughlin
&
S.
proved but
Reiss,
conspiracies
possibility that
that
instead that
1 L. Sand, J.
Modern Federal
_______________
Jury
____
-22-22-
Instructions
____________
19-01,
generally Kotteakos
_________ _________
at 19-24
to
19-34.3
(1993).
See
___
750, 773-74
(1946).
By
contrast, we
proposing an
are
concerned here
instruction that
with the
contemplates a larger
defense
single
conspiracy.
case,
of
each
type
of
conspiracy
conspiracy and
the
various ECT
that
the jury
conspiracy
charged
the
statute conspiracies),
to acquit
(namely,
if it
been proved.
RICO
and
found that a
It quotes from
government
conspiracy
concludes
is established,
that
"[i]f
an
individualized
it is
not a
legitimate defense
multiple victims."
This position
meet
an instruction on
be influenced by
his theory of
-23-23-
defense so
long as the
the record to
support it."
Cir. 1988).
included offense
jury to
charge, where
were warranted
would not be
an answer
to a lesser
a lesser included
but
permit a
offense occurred.
205 (1973).
nevertheless
to say that
809 (1st
If such
omitted,
it
and
a jury,
to an abstract answer
One
that
reason
presented:
is
for
quite
example,
different
the
unrelated to context.
situations
colorable
may
"single
be
large
different actors
nothing more
than a
and
objectives and,
in another,
different characterization of
as multiple conspiracies.
be
the very
In the
former
At best,
as a
set of separate
transactions that
conspiracies, or
one
-24-24-
double
overarching
conspiracy
conspiracies.
Partly
inference; partly
into the
that
jeopardy issues
and
this
nest
is
wrongful transactions,
to
of
problem
of "an
S. Ct.
an
of
proof
and
trying to squeeze
agreement" activities
114
both
____
underlying smaller
conceptual cubbyhole
Sepulveda, 15
_________
one side)
See
___
United States v.
_____________
United States
_____________
v. Moran,
_____
984 F.2d
events, in such a
case as ours we
do not think
that
a defendant--even
____
conspiracy"
if
instruction--is
arguably entitled
entitled
to
to a
what
"single
the defense
parts
defendant
offense
of
has
the same
____
been
conspiracy,
charged twice
or
then
more
at
are
worst the
with the
same
one conspiracy.
864-65
If
if it
(1985).
Cf. Ball
___ ____
v. United States,
_____________
470 U.S.
856,
miscarriage of justice.
Both of
flawed
-25-25-
if it
and
found a single
for rather obvious
conspiracy.
The law
is well settled,
district judge is
668 F.2d
566 (1st Cir. 1981); United States v. Leaching, 427 F.2d 1107
_____________
________
(1st
Cir. 1970).
error based on
must proffer
Rather,
to preserve an
the refusal to
a substantially
ordinary claim of
give an instruction,
correct statement of
counsel
the law.
defense instructions
for a
"single
conspiracy" instruction
is
we can
properly
difficult problem
conspiracy
conviction.
put
off
to
Accordingly, we think
another
day
the
very
instruction should
be given,
problem fraught
other general
claim of error
be considered.
relating to
the ECT
In order
to prove
18 U.S.C.
-26-26-
(as
collected,
or
extortionate
criminal
that
nonpayment
means, that
means.
18
contested at trial.
is, by
U.S.C.
Over
might
be
punished,
violence or
891(b).
debt might be
This
by
other harmful
element
was
never
testimony
was
elicited
directly
by
the
government
on
on cross-examination that he
threatened.
The
redirect
was
Gazza's fears
violence to
ensure repayment.
trial court's
might resort
to
Appellants
murder
and
Oreto,
Sr.'s
alleged
loansharking
activities.
Appellants'
argument
is
largely
foreclosed
DeVincent, 546
_________
by
F.2d 452
our
(1st
Cir.
1976).
In
of 18
testimony
conviction
for armed
indictment.
U.S.C.
regarding
892,
the
the trial
defendant's
robbery
and his
court
admitted
twenty-year-old
ten-year-old
murder
-27-27-
holds that
a prior conviction
for a
defendant's
latter's
as to
reasonable expectations
how the
lender may
collect the
permits
loan.
It
reputation
violence--in more
892(c), 894(c).
is true
evidence--usually
restricted situations.
statute itself
reputation
See 18
___
Evid.
404(b),
when offered
to
U.S.C.
for
show
the
under Fed.
basis for
otherwise largely for the trial court, see Fed. R. Evid. 403,
___
and no abuse of discretion has been shown here.
We
next consider
convictions.
The
several general
RICO statute
person employed by or
attacks on
makes it
a crime
for "any
the RICO
or foreign
-28-28-
1962(c).
The
district court
gave the
18
following
of "conduct or participate .
. .
enterprise was
unless it
the
not
subject to
Jr.
definition do
Id.
___
and Petrosino
at 1173.
argue
not participate
It
that
observed
that
Relying
on Reves,
_____
"mere employees"
by
or manage-
liability
or management of
in the "operation
the
civil RICO
enterprise itself."
Oreto,
"some
____
part
Further,
directing
the
translating
Reves'
_____
concern with
"horizontal" connections--
-29-29-
focusing
on the
"vertical"
liability of
question of
how
an outside
far RICO
adviser--into the
liability may
extend
In
our view, the reason the accountants were not liable in Reves
_____
is
that,
while
they
were
undeniably
involved
in
the
them
outside the
out;
in
other words,
the
accountants
were
were plainly
collection process.
part in,"
113 S.
Reves
_____
Ct. at
integral to carrying
out the
nothing in
the Court's
opinion precludes our holding that one may "take part in" the
conduct of an enterprise by knowingly implementing decisions,
as well as by making them.
enterprise
also
is `operated'
by lower-rung
under
participants in
by upper
management but
the enterprise
who are
(emphasis added).
Congress declared in RICO that the statutory purpose was
"to seek
the eradication
States" and
which
of organized
crime in
sharking" as
the United
a means
by
See Pub.
___
-30-30-
L. 91-452,
18
U.S. C.
"collection
of
liability.
This
charged,
unlawful
RICO
Purpose following
also provides
debt"
is
expressly
predicate
for
that
RICO
conduct is
precisely what
the government
was engaged in
by the present
appellants.
We
participate in
think
Congress intended
to reach
all who
instructions.
participating
defendant
may
aspect of the
violate
RICO
by
18 U.S.C.
1962(c).
The
in the
collect
violation
(specifying
individual
loans
of 18 U.S.C.
violations
894.
of
18
by
extortionate
See 18 U.S.C.
___
U.S.C.
891-94
means
in
1961(1)(B)
as
valid
____________________
2Appellants also claim prejudice from the district
court's
failure
to complete
its explanation
of the
"association with or employment by the enterprise" element of
1962(c) after an interruption.
Appellants have not
explained how they were harmed by the omission and the
language apparently omitted would have been primarily helpful
to the government.
-31-31-
Appellants
that the jury
if
the
an
to the
trial
appellants
commission
acts.
objected
of at
committed
least
or
__
two of
court's instruction
racketeering activity
aided
and
the specified
abetted
the
racketeering
alternative charge
implicit,"
in every
count, whether
explicit or
499
courts
to
have held
may be
consider
convicted
the issue
of aiding and
United States
_____________
1991);
a defendant
abetting a conspiracy.
v. Gonzalez,
________
United States
_____________
that
933 F.2d
See, e.g.,
___ ____
417, 444-45
(7th Cir.
869 F.2d
1288, 1293
v. Portac, Inc.,
____________
only a
single
ECT statute
conspiracy involving
these
of racketeering.
18 U.S.C.
1961(5).
possibility of
a single
were
each
is
Quite apart
we think it is enough
racketeering
(and it
that the
also
____
conspiracies
to
make
-32-32-
This
requirement
debt.
does not
Even if the
1962(c).
jury had
to
the collection
convicted only
apply
We
on a
in this case
of
consider whether
18
a single
was
required.
Confronting
Weiner
______
appellants
argue
that
our
one theory
theory
violates
the
but only
equal
protection
the same
so we
statute.
"rationally
must uphold
related
to
a different
clause,
apparently
one for
The
the
State's
v.
statutory distinction
nor burdens a
the statute
than
if the
fundamental
disparity is
objective."
Martin, 440
______
Harrah
______
U.S. 194,
199
-33-33-
directed.
Accordingly, it
other
this rationale
forms of
was
the actual
irrelevant
Minnesota
_________
above) gives
some
to
statement
reason to
activity.
motivation for
distinction is
although Congress'
cases than
racketeering
statutory
(1981),
chosen to
cases involving
Whether
our
inquiry,
449 U.S.
of
purposes
believe that
the
see
___
456, 466
(quoted
Congress did
so
reason.
A due process argument advanced by appellants is equally
without merit.
"continuity
section
In essence,
plus relationship"
1962(c)
unconstitutional.
States v.
______
they appear to
is
so
test for
inherently
We rejected a similar
the
"pattern" under
vague
as
to
be
argument in United
______
Cir. 1990),
argue that
present case
the
evidence to
support
convictions on
various
insufficient evidence
both
to support the
-34-34-
and on the
-counts
10 and
because
neither of
government
894,
14
failed to
of the
the
indictment--cannot be
alleged victims
identify the
sustained
testified and
voices on
the
wiretap tapes
the voices
tapes for
in question and
the jury.
their
identified the
Further, the
illegal
corroborated,
by
documentary
evidence
in
the
testified
at
trial
efforts to collect
as
to
each loan.
Oreto,
Jr.'s
The evidence
involving extortionate
67 of the
collection of a
loan to
ample
other
evidence,
however, that
Brangiforte loan:
Oreto,
Brangiforte
There
Jr.
was
testified
the
government
Brangiforte and
produced
wiretap
recordings
of
-35-35-
he saw Brangiforte
an
envelope.
inability
for
jury argument,
conviction.
but
is
not
in
itself
Brangiforte's
fatal
v. Doherty, 867
_______
to
the
F.2d 47, 67
____________
Oreto,
question.
loan to
was
Jr.'s challenge
to count
16 presents
a closer
collection of a
improper because
Eleanor Kelley .
"[t]here was
simply no
. . was in fear."
evidence that
under 18 U.S.C.
"[I]t
indebtedness,
debtor,
that
United States
_____________
1986).
is the
v.
focus of
two
other strangers
loan.
the visit,
the
inquiry for
F.2d
1543, 1548
visited
in
the
the jury."
(9th
Cir.
32.02, at 32-16.1.
evidence that Oreto,
Kelley
at
her place
The government
Jr.
of
Sr. about
we think that
nature of
produced
the
government offered
that
mental state
Polizzi, 801
_______
business in order to
the
the
Here, the
and
not
a reasonable jury
the loan,
-36-36-
its
could determine
interest rate,
and the
legitimate
lenders, and
that
the
appellants'
Jr. also
argues that
that
"participated
he
the government
in
the
There
a mere collector
is no
a long period.
with his
evidence is
short period
of
or
participation extend
involved in at
management
for a
requirement that
failed to
in
The
also
challenges
grounds, contending
his
RICO
that the
convictions
on
government proved
only that he was "a collector paid $50 weekly for a bare five
months"
and
that
"participated
enterprise
itself."
defendant share
for
in
this
is
the
operation
The
insufficient
or
to show
management
statute requires
that
he
of
the
neither that
nor participate
requirement is met.
Those actions
are sufficient.
-37-37-
at trial
to the
following
Cage
____
equate
v. Louisiana,
_________
was constitutionally
in
the
498 U.S.
doubt," appellants
reversed due
to the
(1990), which
an "actual
inadequate.
present instruction
39
is
Arguing
faulty
substantial doubt"
that "real doubt"
equivalent to
held to
"substantial
convictions must be
See Sullivan
___ ________
v.
Louisiana, 113
_________
(erroneous instruction on
If taken to
it, the instruction may mislead the jury into thinking that a
small but reasonable doubt
is no bar to conviction.
phrase would be
doubt
"something
must
be
Victor v. Nebraska,
______
________
used
more than
But the
that the
speculative
one."
The term
Id. at
___
-38-38-
1250.
Boilerplate might
error.
Affirmed.
________
be preferable,
but there
was no
-39-39-