USCA1 Opinion

November 8, 1994

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

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

Page 2 of the Cover

"Dinisco" to "DiNisco".

Page 3, lines 9-10:

issued on

Sheet, line

October 4,

1994, is

Change

the name

5:

Delete the words "Hobbs Act".

Page 3, line 11: After the number "894" add the words "(the
extortionate credit transactions or "ECT" statute)".
Page 8, line
"additional".

12:

Page 11, line 22:

Add

Page 23, line 25:

words "ECT statute".
Page 24,
"employed".

line 8:

Page 29, line 16:

"plus".
Page 30, line 17:

"an"

before

the

word

Substitute "2" for "12".

Page 17, lines 17-18:

the words "ECT statute".
Page 23, line 7:

the word

Replace the words

Substitute "

892," for "

Replace the words

Add

the

word

"Hobbs Act" with

1892,".

"Hobbs Act" with the

"by"

after

the

word

Delete the quotation marks after the word

Delete the word "moreover,".

Page 30, line 18:

"`Bible'; and Daniel".

Change the words

"`Bible' and Daniel" to

On the following pages and lines, substitute "ECT" for

"Hobbs Act": Page 4, lines 7 and 10; page 6, line 16; page 15,
lines 15, 18 and 22; page 17, lines 1, 5 and 11; page 18, line
21; page 22, line 8; page 27, line 23; page 28, lines 2, 4, 8-9
and 12.

October 26, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
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.
____________________
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:

Change the name "Dinisco"

Delete the words "Hobbs Act".

Page 3, line 11:

After the number "894" add
extortionate credit transactions or "ETC" statute)".
Page 8, line 12:

1994, is amen

the words

"(

Add the word "an" before the word "additional

Page 11, line 22:

Substitute "2" for "12".

Page 17, lines 17-18:

words "ETC statute".
Page 23, line 7:
Page 23, line
"ETC statute".

Substitute "

25:

Page 24, line 8:

Page
"plus".

29, line

Replace the

words "Hobbs

892," for "

Replace the words

Act" with

1892,".

"Hobbs Act" with the

wo

Add the word "by" after the word "employed".

16:

Page 30, line 17:

Page 30, line 18:
"`Bible'; and Daniel".
On the following
Act": Page 4, lines 7
and 22; page 17, lines
page 27, line 23; page

Delete the

quotation

marks after

the w

Delete the word "moreover,".

Change

the

words "`Bible'

and Daniel"

pages and lines, substitute "ETC" for "Ho

and 10; page 6, line 16; page 15, lines 15,
1, 5 and 11; page 18, line 21; page 22, line
28, lines 2, 4, 8-9 and 12.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
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.
____________________
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.
_____________
____________________

Charles W. Rankin, by Appointment of the Court, with whom Ran

_________________
___
& Sultan, Cornelius H. Kane, Jr, and Charles P. McGinty, Fede
_________ _______________________
___________________
Defender Office, were on consolidated brief for appellants.
Sean Connelly, Department of Justice, with whom Donald K. Ste
______________
_____________
United States Attorney, Ernest S. DiNisco and Todd E. Newhou

Assistant
States.

United

___________________
States Attorneys, were on

____________________
October 4, 1994
____________________

________________
brief for the Uni

BOUDIN, Circuit Judge.

______________

Frank Oreto,

Sr., Frank Oreto,

Jr., and Dennis Petrosino ("the appellants")

convictions

challenge their

on a number of charges arising out of an alleged

loansharking ring

operating in

Revere,

Massachusetts.

We

affirm.

The

appellants

I.

BACKGROUND

were

charged

indictment with offenses

in

June

1987

under the Racketeer Influenced

Corrupt Organizations Act ("RICO"), 18 U.S.C.

as

offenses involving

the making

collection by extortionate means.

extortionate

credit

18 U.S.C.

and

loans or

892, 894 (the

or "ECT"

statute).

The

pages long, contained 82 counts,

and named several other defendants

this appeal.

an

1962, as well

of extortionate

transactions

original indictment was 137

parties to

in

besides the three who are

The structure

of the charges is of

some importance.
Count 1 alleged a RICO

conspiracy involving all of

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

the same conduct as predicate acts.

alleged

each of

and realleged

Counts 3 through 76 then

extortionate

lending

or

collection

-7-7-

transactions as individual conspiracies to

violate 18 U.S.C.

892, 894, or--in ten instances--as individual extortionate

collections by Oreto, Sr. in violation of the latter statute.
(Counts

76-82 involved

mail fraud charges

against indicted

defendants other than the three appellants.)

Oreto, Sr.,
that

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

Petrosino were also

RICO conspiracy and RICO substantive counts

number

transactions
counts.

All

transactions

and

ECT statute
named in

the

and in a limited

the corresponding

three

the

of the

ECT

appellants

appeared in various of the 62 usurious loan transactions that

were also alleged predicate acts in

counts I and II but were

not charged as separate conspiracies or substantive crimes in

any other count.
One

of

the

defendants

named in

severed and tried separately.

F.2d

17

(1st

disappeared from
briefs;

at least

those who stood

were

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

The three appellants

offered seized

court-authorized

indictment

See United States v. Weiner, 3

___ _____________
______

Cir.

trial.

the

and

in this

case

At trial

the

and borrowers,
testimony

by

-8-8-

cooperating

co-conspirators and individuals who had borrowed

money from Oreto, Sr.

favorable

We state the facts in the

to verdicts being appealed.

light most

Weiner, 3 F.2d at 19.

______

So viewed,
find the

the evidence permitted a

following.

Oreto,

reasonable jury to

Sr. headed an

enterprise which

made loans to over three hundred borrowers at weekly interest

rates of from
translate

three to

seven percent.

into annual interest

the maximum legal rate

of from 156

annually.

Jr. and

Petrosino served as collectors

them

Mass. Gen.

Over two

asserting

rates

to 364 percent;

in Massachusetts, by contrast, is

percent

operation.

Those weekly

Laws. ch. 271,

49.

Sr.

and

Oreto,

for the loansharking

dozen borrowers testified,

that Oreto,

20

various of

his accomplices

used

threats and intimidation to ensure payment of the loans.

The

loansharking business

locations in or

was

conducted from

various

near Revere including both Oreto, Sr.'s home

and a function hall in which Oreto, Sr. was a silent partner.

The documentary evidence included the organization's "Bible,"
its master
"Frank,

list of borrowers, debts,

Jr.,"

and

"Dennis"

salaries and expenses.

were listed

among

received weekly salaries.

Much of the trial was

to testimony

whose loans were

by borrowers

those

who

given over

corroborated by

entries in the Bible.

These witnesses testified that Oreto, Sr. employed tall,
physically imposing men--Petrosino, for example, is described

-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

testified that they were physically assaulted by Oreto, Sr.'s

collectors,

and

many

more borrowers

testified

that

they

believed that harm would come to them if they failed to

make

their payments.
The jury convicted each
of conspiring to violate
as

one

of the appellants on one

RICO, 18 U.S.C.

substantive RICO

count. 18

1962(d),

U.S.C.

count
as well

1962(c).

In

addition, Oreto, Sr. was convicted on 35 counts of conspiring

to

collect loans by extortionate means, 18 U.S.C.

counts of
three

making extortionate

loans, 18

counts of conspiring to make

The jury

also

convicted

Oreto, Jr.

U.S.C.

At

later

892; and

extortionate loans.
on

four

Petrosino on seven counts, of conspiring to

extortionate means.

894; ten

counts,

Id.
___
and

collect loans by

date, Oreto,

Sr.

was

sentenced to 20 years imprisonment on the RICO counts, to run

concurrently
statute counts

with 15

year sentences

but consecutively to

on the

individual ECT

a life sentence

he was

then serving in Massachusetts

murder.
and

Oreto, Jr.

10 years

state prison for second degree

and Petrosino were sentenced to

imprisonment, respectively,

6 years

on each

count of

-10-10-

conviction, with

all sentences

to run concurrently.

These

appeals followed.
II.

THE MISCONDUCT CLAIMS

Appellants' first
prejudiced

by

argument on appeal is

prosecutorial

that they were

misconduct involving

in-court

identifications of them by a series of former borrowers.

first

indication of

such misconduct

1990--three months into

identification.
"Dennis"
asked

Doherty had

Dennis,

United

Doherty, a Revere fireman alleged

from Oreto, Sr., to make

had visited him on

to identify

March 29,

the trial--when an assistant

States attorney asked John

to have borrowed money

occurred on

The

testified

that

one occasion at
Doherty

an in-court
a man

named

work but, when

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

been described to him

that the
that

government
the

their counsel

seating

tables had

by an FBI agent who had been assisting

trial.

the

Doherty's confusion

fact that

there

appears to

was more

than

one

defense table. Oreto, Jr. was sitting in the same position at

his table

as Petrosino--the second seat

at a different table.

from the right--but

The defense moved for a

mistrial and

requested a hearing on the issue.

-11-11-

At a hearing beginning

on April 2, 1990, the

FBI agent

acknowledged that he had told Doherty the seating arrangement

of appellants
This was

prior to

done ostensibly

Doherty's entry into

for

the purpose

the courtroom.
of reducing

the

witnesses'
courtroom
seating

nervousness
layout.

The

by

familiarizing

agent also

arrangement to two other

Gazza,

who had

testified

Oreto,

Sr., and

the

them

with

the

admitted conveying

the

witnesses.

prior to

other was

One was Joseph

Doherty and

Michael

identified

DiCarlo, whom

the

government chose not to call.

Two other
had

known where

Filipowich, who
who

experience

of

the defendants

Oreto,

that he had

hearing that they

would be

identified Oreto,

identified both

however, said

knew

witnesses testified at the

Sr., and

Sr. and

Ronald

Frank Anderson,

Petrosino.

such knowledge

as a police officer,

sitting:

Anderson,

only because

his

and Filipowich said that he

only that the defendants would be sitting in the "back"

the

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

defendants' motions for a mistrial and instructed the jury as

follows:

-12-12-

Four witnesses--Mr. John Doherty, Mr. Joseph Gazza,

Mr. Frank Anderson, Mr. Ronald Filipowich--gave
testimony in the case before you. Each was asked
to identify Mr. Frank Oreto, Sr., and each gave a
reply.
Prior to that session the Government team
told Mr. Doherty, Mr. Gazza, Mr. Anderson, and Mr.
Filipowich
the
seating
arrangements of
the
defendants.
Now, you must be instructed as to the
following:
First, identification is an essential element that
the Government must prove beyond a reasonable
doubt.
2. You are to consider that evidence that seeks to
prove that, and you must carefully weigh the testimony in determining what weight you shall give that
testimony as you review it in your deliberations.
Suggestions as to identification may [a]ffect an in
Court identification by making it the result of the
suggestion rather than that which the witnesses
actually saw or observed.
Your responsibility is
to determine from all the evidence whether or not
the identifications made by the witnesses were
based on their own actual knowledge and memory, and
not on information provided them about the seating
positions of the
defendants provided by
the
Government.
Therefore, you may consider the fact that the Government
told
the
witnesses Doherty,
Gazza,
Anderson,
and
Filipowich
about the
seating
arrangements of the defendants, and of Mr. Oreto,
Sr. in particular, as you go about deciding how
much weight and relevance you will give to those in
Court identifications.
The

district court's

similar

instruction.

objections

to

this

final charge
The

court

instruction,

to

the jury

rejected
as

well

instructions proffered by defense counsel.

the
as

included a
defense's
alternative

Appellants

now contend

required a mistrial.

that

the government's

conduct

Ordinarily, we will reverse a district

-13-13-

court's

denial of a motion for

of discretion.
3 (1st Cir.

a mistrial only for an abuse

E.g., United States v. Castiello, 915 F.2d 1,

____ _____________
_________

1990), cert. denied, 498 U.S. 1068

____________

government assumes, solely for

the

revelation

of

The

purposes of this appeal, that

defendants'

identification witnesses

(1991).

seating

was improper.

arrangements

It

to

argues, however,

that there was no prejudice to any of the appellants.

We think this assertion

is clearly correct with respect

to Oreto, Jr., who was not identified by any of the witnesses

who

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

government's case against Petrosino.

The only other disputed

identification

Anderson--occurred

connection

of

with

Petrosino--by

count

upon

in

which

Petrosino

was

not

Sr.

present a

slightly

convicted.
The identifications

of Oreto,

more difficult problem.

Four of

the five arguably

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

under all of the

which those

therefore determine
was

impermissibly

identifications

were

circumstances.

E.g.,
____

-14-14-

United States v. Gray, 958 F.2d 9, 13-14 (1st Cir. 1992).

_____________
____
the

latter issue,

Oreto, Sr.

we conclude

that the

made were sufficiently reliable

On

identifications of
and the curative

instructions were such that a mistrial was not required.

This is not a case

e.g., by a
____

witness who

crime--has

been

identification

procedures.

by

perpetrator of

improperly

See Neil
___ ____

suggestive

v. Biggers,
_______

409 U.S.

Here, the witnesses identifying Oreto,

had dealt with him on numerous occasions and without any

attempt by Oreto, Sr.

were

only glimpses the

bolstered

188, 199-200 (1972).

Sr.

in which a marginal identification--

corroborated

by

Indeed, Oreto, Sr. did

to mask his identity.

documents seized

by

These dealings
the government.

not claim that someone else

had made

the loans in question, but rather that those transactions had

never involved threats or violence.
were given ample

Finally, defense counsel

opportunity to explore

the defects in

the

identification procedure on cross-examination and argue those

defects to the jury in summation.
Appellants also assert that
foreclosed

inquiry

identification

into

the trial court

"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

testimony remained untainted.

the stand
any

after the

part of

their

Appellants do not explain what

-15-15-

they

would have

testimony,

over

asked these
and

witnesses during

above

the

such further

thorough cross-examination

conducted during the witnesses' initial testimony.

One
April

assistant United
hearing.

States attorney testified

Appellants

complain

that

at the

second

prosecutor, who was co-counsel at the trial, should have been

ordered

to testify.

This

testimony appears

to

have been

sought only to clarify certain details as to what information

was given to which
as

witnesses.

The government has

asked us,

it asked the trial court, to resolve all of these ambigu-

ities

in

witness
sitting.

the defense's
was

told

favor

exactly

and

assume

where each

that each

defendant

would

such
be

The additional testimony sought by appellants could

not have given them more.

Appellants
testimony

given

next
by

say
several

that

the

witnesses

similar

wording

regarding the

in
fear

element of the extortion counts may have indicated additional

government "coaching" of witnesses,
frustrated efforts to inquire
of
come

and that the trial court

into such misconduct.

Several

the witnesses testified that they feared that "harm would

to them" if they did not repay their loans.

Appellants

say that this syntax as unnatural, suggesting that its source

lay with the prosecution rather than the natural recollection
of the witnesses involved.

-16-16-

number

different

of other

formulations,

witnesses testified
and

the

fear

supported by additional evidence.

example,

stated

Costa, a manager

in an

using entirely

element

was

Debtor Lloyd Plotkin, for

intercepted

conversation with

in the loanshark organization,

other debtors testified at

actually been
adequate

employed

opportunity

Similar-

trial that violent means had

against them.
on

John

that he was

"afraid" of being "hit" and "slapped" by Oreto, Sr.

ly,

amply

The

defense had

cross-examination to

explore

an
any

misconduct that might discredit the witnesses, and no further

fishing expedition was required.
The appellants also complain

that they were not allowed

to call the assistant United States attorneys trying the case

as

trial

witnesses

identification

a trial

witness, a

1169, 1194 (1st

the court

about

defendant

misconduct
must

before being allowed to

prosecutor to step aside.

Here,

testify

process.

"compelling need"
as

to

step that

in

establish

the
a

call a prosecutor

will usually

require the

United States v. Angiulo, 897 F.2d

_____________
_______

Cir.), cert. denied, 498

_____________
dealt with

U.S. 845

the suggestive

through the hearing and instructions.

(1990).

identifications

We think that this was

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

This was mild vouching, but we see

the statement as essentially harmless, especially in light of

the

defense's

repeated

government misconduct

attempts

and

make it

to

magnify

the

the focus

alleged

of the

case.

Reversal is not automatically required where improper remarks

by prosecutor are isolated
attacks by
F.2d

and made in response

defense counsel.

945, 956 (1st Cir.

United States
_____________

to specific

v. Machor,
______

1989), cert. denied,

____________

879

493 U.S. 1081

(1990).
At the close of the
proposed
regarding
process.

instructions
government

evidence, the defense proffered two

to

be

given

misconduct

in

by

the
the

trial

court

identification

The first of these stated in part as follows:

It is improper for the government to tell a witness

where a defendant is sitting in the courtroom. I
have found that such conduct occurred here on four
specific occasion, affecting the testimony of Mr.
Doherty,
Mr.
Gazza,
Mr.
Anderson
and Mr.
Filipowich.
I now instruct you that attempts by
"the Government team" . . . to conceal or make up
evidence, or to influence witnesses to testify
favorably to the government, may be considered by
____________________
(1963), by failing to disclose Doherty's prior description to
the defense (so it could point out that Petrosino did not
look Irish).
We agree with the district court that in the
context of this case the supposed characterization was too
vague to qualify as exculpatory under Brady.
_____
-18-18-

you as reflecting an
defendant.

attempt to unfairly convict a

. . . .
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

charges, then you

must

find the defendants not guilty of these charges."

Both of

the proposed

acquit the defendants

misconduct

instructions invited the

primarily or

by the government.

"[the] facts making

solely on

Here, as in

up the theory, if

jury to

the basis

of

an earlier case

believed, [would] not

defeat the factual theory of the prosecution."

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

exculpatory theory which the defense is entitled

judge formally present

to the

jury.

See
___

is

is
not

a
an

to have the

United States
_____________

v.

Porter, 764 F.2d 1, 14 (1st Cir. 1985).

______
III.

THE MERITS AND RELATED ISSUES

-19-19-

Our discussion of the merits begins with the ECT statute

counts which,

although listed later in

incorporated in the RICO

Most

of

the

ECT

the indictment, were

counts as potential predicate acts.

statute

counts

charged

individual

conspiracies either to make extortionate extensions of credit

or

to

collect

Appellants now

such

extensions

claim that

convicted of multiple

by

extortionate

they were improperly

ECT statute

means.

charged and

conspiracies, whereas

in

reality

there were

no distinct

agreements separate

from a

single overall loansharking conspiracy.

We have said that "[w]hether a given body of evidence is
indicative of

a single conspiracy, multiple conspiracies, or

no conspiracy at all is ordinarily a matter of fact."

States
______

v. David, 940 F.2d 722, 732 (1st Cir.), cert. denied,

_____
____________

112 S. Ct. 605 (1991).

could

United
______

on

the

It is true that if no reasonable jury

evidence

conspiracies charged,
warranted.
precludes

presented

find

then a judgment of

the

acquittal would be

It is a "heavy burden" to show that the

the findings made by

Innamorati, 996 F.2d

__________
S. Ct. 409 (1993).

multiple

the jury.

evidence

United States v.
_____________

456, 469 (1st Cir.), cert. denied, 114

_____________
Appellants

here do not even try to carry

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

in finding only one large conspiracy.

that

the

individual

not

find

conspiracies:

time frame,

might have

jury

jury could

similarity

and

justified the

They hardly show

the requisites

a specific

of

of

agreement,

smaller
and

the

required intent, as to each loan transaction.

The

appellants'

government

brief

counsel to

quotes

the jury,

from

statements

arguing that

by

the evidence

shows the connections necessary to prove the overarching RICO

conspiracy

charged in count 1.

But the

requirements for a

RICO conspiracy are different than the requirements for a ECT

statute conspiracy,

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

statute conspiracies have also been proved.

The second

branch of appellants'

is an attack on
even

if

the

the jury instructions.

evidence

conspiracies, the
set

permitted

Appellants
finding

defense was entitled to

forth the defense theory

one ECT statute conspiracy.

obliged

multiplicity argument

of

say that
separate

instructions that

that there was

(at most) only

Further, they say, the court was

to give the jury guidance,

as reflected in proposed

defense instructions, on how to distinguish between one large

-21-21-

conspiracy and several smaller ones.

question--numbers

12A and

The two instructions in

23--are lengthy

and overlapping;

the former is concerned with RICO and the latter with the ECT
statute.

The district court gave neither.

In substance,
the

jury

to

each of

determine

the requested instructions

"whether

two

or

more

asks

charged

conspiracies are really the same offense"; both set forth the
multiple

factor test that this and other courts have used in

considering double jeopardy claims in the conspiracy context;

and

both refer to the

"that the
were not

possibility that the

multiple conspiracies
separate and

cited United States

_____________

distinct."

charged

Cir.), cert. denied, 498

_____________
the multi-factor test.

in the

One of

v. Gomes-Pabon, 911
___________

jury could find

indictment

the instructions

F.2d 847, 860

U.S. 1074 (1991),

(1st

which discussed

It is common practice, especially in drug cases, for the

government (because
inhere)

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

only smaller conspiracies may have been shown.

Siffert,

that

instead that
1 L. Sand, J.

Modern Federal
_______________

Jury
____

-22-22-

Instructions
____________

19-01,

generally Kotteakos
_________ _________

at 19-24

to

19-34.3

v. United States, 328 U.S.

______________

(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

The government thinks that it is enough, in this

that the jury was

each

type

properly instructed on the elements

of

conspiracy

conspiracy and

the

various ECT

that

was also told

the jury

conspiracy

charged

the

statute conspiracies),

to acquit

as charged had not

(namely,

if it

been proved.

RICO
and

found that a
It quotes from

the district court's instructions:

If you find that any defendant participated in
a conspiracy but it was different from those
charged in the indictment, that determination would
provide no basis for finding that defendant guilty
of the offense charged.
If you find that the conspiracy charged did
not exist, then you must return a verdict of not
guilty even though you find that some
other
conspiracy did, in fact, exist.
The

government

conspiracy

concludes

is established,

that the defendant engaged

that

"[i]f

an

individualized

it is

not a

legitimate defense

in a broader conspiracy involving

multiple victims."
This position
meet

has some appeal, but it does not entirely

the reality that a

jury's choice may

the alternatives presented.

to

an instruction on

be influenced by

Thus, "[a]n accused is entitled

his theory of
-23-23-

defense so

long as the

theory is a valid one and there is evidence in

the record to

support it."

United States v. Rodriguez, 858 F.2d

______________
_________

Cir. 1988).

Similarly, a defendant has a right

included offense
jury to

charge, where

find that only

E.g., Keeble v. United States, 412 U.S.

____ ______
_____________
instructions

were warranted

would not be

an answer

to a lesser

the evidence would

a lesser included

but

permit a

offense occurred.

205 (1973).

nevertheless

to say that

809 (1st

If such

omitted,

the jury convicted

it
and

that the evidence was sufficient to support the conviction.

The question what a

district court should tell

a jury,

where multiple conspiracies are charged but the defense urges

a single large conspiracy, is a difficult one and is probably
not susceptible

to an abstract answer

One

that

reason

presented:

is
for

quite

example,

different
the

unrelated to context.
situations

colorable

may

"single

be

large

conspiracy" might in one case be an entirely different entity

with

different actors

nothing more

than a

same acts charged

case,

and

objectives and,

in another,

different characterization of

as multiple conspiracies.

be

the very

In the

former

the charge in the two indented paragraphs quoted above

would probably protect the defendants pretty effectively even

without a specific reference to a "single" conspiracy.
Our situation is more akin to the latter case.

At best,

the defendants have engaged in a series of

could be viewed

as a

set of separate

transactions that

conspiracies, or

one

-24-24-

overall conspiracy embracing numerous

or (putting

double

overarching

conspiracy

conspiracies.

Partly

inference; partly
into the
that

jeopardy issues
and
this

nest
is

wrongful transactions,
to
of

problem

in practice often have

of "an

S. Ct.

an

of

proof

and

trying to squeeze

agreement" activities

the more shapeless character of

an evolving joint criminal enterprise.

114

both
____

underlying smaller

the problem arises from

conceptual cubbyhole

Sepulveda, 15
_________

one side)

See
___

United States v.
_____________

F.3d 1161, 1191 (1st Cir. 1993), cert. denied,

____________
2714 (1994);

United States
_____________

v. Moran,
_____

984 F.2d

1299, 1300 (1st Cir. 1993).

In all

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

sought here, namely, a direction to the jury to acquit

finds

that the "two or

the same offense."

really

parts

defendant
offense

of

has

more charged conspiracies are really

the various charged conspiracies

the same
____

been

conspiracy,

charged twice

or

then
more

at

are

worst the

with the

same

and can be convicted (or at least punished) only for

one conspiracy.
864-65

If

if it

(1985).

Cf. Ball
___ ____

v. United States,
_____________

470 U.S.

856,

An outright acquittal on all counts would be

miscarriage of justice.
Both of
flawed

the instructions sought

here are fundamentally

because they sought a direction to the jury to acquit

-25-25-

if it
and

found a single
for rather obvious

conspiracy.

The law

reasons, that the

is well settled,
district judge is

not required to edit a proposed instruction to delete the bad

and preserve the good.

United States v. Flaherty,

_____________
________

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

The acquittal direction alone makes the

counsel
the law.

defense instructions

improper in the context of this case.

The request
likely to be rare.

for a

"single

conspiracy" instruction

is

Usually, as already noted, the government

presses this theory and the defense resists; it was sought by

the defense here because

the defense thought (mistakenly, as

we explain below) that a single conspiracy would insulate the

defendants against a RICO
that

we can

properly

difficult problem
conspiracy

conviction.

put

off

to

Accordingly, we think
another

day

the

very

of deciding whether and when such a single

instruction should

be given,

problem fraught

with practical difficulties in explaining matters to the jury

as well as the theoretical ones to which we have adverted.
One

other general

statute counts remains to

claim of error
be considered.

relating to

the ECT

In order

to prove

that an extension of credit was extortionate under

18 U.S.C.

892, the government was obligated to prove that the debtor

-26-26-

(as

well as the defendant)

collected,

or

extortionate
criminal

that

nonpayment

means, that

means.

18

contested at trial.

believed that the

is, by

U.S.C.
Over

might

be

punished,

violence or
891(b).

debt might be

This

by

other harmful
element

was

defense objection, the trial court

allowed one of the alleged loanshark borrowers, Joe Gazza, to

testify that he knew Oreto, Sr. "got out of jail for murder."
This
redirect,
had

never

testimony

was

elicited

after Gazza admitted

been

directly

by

the

government

on

on cross-examination that he

threatened.

The

redirect

was

admitted by the trial court solely for the purpose of showing

a basis for

Gazza's fears

violence to

ensure repayment.

trial court's

that Oreto, Sr.

might resort

to

Appellants

now challenge the

admission of the testimony,

noting its highly

prejudicial nature and the lack of any connection between the

prior

murder

and

Oreto,

Sr.'s

alleged

loansharking

activities.
Appellants'

argument

is

decision in United States v.

______________

largely

foreclosed

DeVincent, 546
_________

by

F.2d 452

our
(1st

Cir.

1976).

In

that case, which

that the defendant made

violation

of 18

testimony
conviction

for armed

indictment.

extortionate extensions of credit in

U.S.C.

regarding

also involved allegations

892,
the

the trial

defendant's

robbery

and his

court

admitted

twenty-year-old

ten-year-old

murder

Upholding this decision, Judge Coffin explained:

-27-27-

Neither of the events could be admitted to show

that DeVincent was a bad man.
If known to the
debtor, however, they can be admitted to show an
element of the crime--the understanding of the
debtor
that default
would be
punished with
violence.
The debtor's awareness of the lender's
earlier conviction, or even indictment, for a
violent crime surely affects his view of the
lender's likely collection practices.
546 F.2d at 456-57.
DeVincent clearly
_________
violent crime--even one

holds that

a prior conviction

wholly unrelated to the

for a

defendant's

lending activities--may, if known

to a debtor, influence the

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

that the ECT

evidence--usually

restricted situations.

statute itself
reputation

See 18
___

But these provisions do

Evid.

404(b),

when offered

to

U.S.C.

not explicitly bar

evidence of specific prior bad acts, as permitted

R.

for

show

the

under Fed.
basis for

victim's fear, and cases besides DeVincent have followed that

_________
course.

The weighing of prejudice against probative value is

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

associated with any enterprise engaged

in, or the activities of which affect, interstate

commerce,

the RICO

or foreign

to conduct or participate, directly or indirectly,

-28-28-

in the conduct of such enterprise's affairs through a pattern

of racketeering activity or collection of unlawful debt."
U.S.C.

1962(c).

The

district court

instruction on the meaning

gave the

18

following

of "conduct or participate .

. .

in the conduct of" an enterprise under the statute:

The term "conduct" and the term "participate in the
conduct of" an enterprise include the performance
of acts, functions or duties which are necessary to
or helpful in the operation of the enterprise. A
person may be found to conduct or to participate in
the conduct of an enterprise even though he is a
mere employee having no part in the management or
control of the enterprise and no share in the profits.
In Reves v.
_____
Supreme Court
by an

held that an outside

enterprise was

unless it
the

Ernst & Young, 113 S. Ct.

_____________

not

accounting firm employed

subject to

Jr.

definition do

Id.
___

and Petrosino

at 1173.

argue

not participate

ment" of the enterprise.

It

that

observed

that

Relying

on Reves,
_____

"mere employees"

by

or manage-

is true that in Reves the Court

_____

the ladder of operations." 113 S. Ct. at

Court

liability

or management of

in the "operation

expressly declined to decide "how far

the

civil RICO

"participate[d] in the operation

enterprise itself."

Oreto,

1163 (1993), the

"some
____

part

1962(c) extends down

1173 n.9.
in

Further,

directing

the

enterprise's affairs is required." Id. at 1170.

___
Reves is a case about the liability of outsiders who may
_____
_________
assist the enterprise's affairs.

Special care is required in

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

within the enterprise but down the organizational ladder.

In

our view, the reason the accountants were not liable in Reves
_____
is

that,

while

they

were

undeniably

involved

in

the

enterprise's decisions, they neither made those decisions nor

carried

them

outside the

out;

in

other words,

chain of command through

the

accountants

were

which the enterprise's

affairs were conducted.

The government did not show that Oreto, Jr. or Petrosino
participated in the enterprise's decisionmaking; but they and
other collectors

were plainly

collection process.
part in,"

113 S.

Reves
_____
Ct. at

integral to carrying

out the

defines "participate" as "to take

1170, and

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

Indeed, the Court said that "[a]n

not just

participants in

by upper

management but

the enterprise

who are

the direction of upper management." 113 S. Ct. at 1173

_________

(emphasis added).
Congress declared in RICO that the statutory purpose was
"to seek

the eradication

States" and
which

of organized

Congress listed "loan

crime in

sharking" as

the United
a means

"organized crime derives much of its power."

by

See Pub.
___

-30-30-

L. 91-452,
18

U.S. C.

(Statement of Findings and

1961).

"collection

of

liability.

This

charged,

unlawful

RICO

Purpose following

also provides

debt"

is

expressly

predicate

for

that
RICO

conduct is

precisely what

the government

and the jury found,

was engaged in

by the present

appellants.

We

participate in

think

Congress intended

the conduct of that

to reach

all who

enterprise, whether they

are generals or foot soldiers.2

Appellants have
RICO

also challenged a second

instructions.

participating

defendant

may

aspect of the

violate

RICO

by

in either a "pattern of racketeering activity"

or "collection of unlawful debt."

18 U.S.C.

1962(c).

The

racketeering prong of the statute requires, at a minimum, "at

least two
1961(5).

acts of racketeering activity . . . ." 18 U.S.C.

In this

case, the predicate acts specified

in the

indictment against Oreto, Jr. and Petrosino were conspiracies

to

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

predicate acts under RICO).

____________________
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

could find a pattern of

appellants

commission
acts.

objected

of at

committed
least

or
__

two of

court's instruction
racketeering activity

aided

and

the specified

abetted

the

racketeering

Our court has observed that "[a]iding and abetting is

alternative charge

implicit,"

in every

count, whether

United States v. Sanchez,

_____________
_______

Cir. 1990) (internal

explicit or

917 F.2d 607, 611 (1st

quotations omitted), cert. denied,

____________

499

U.S. 977 (1991), and it

appears that most if not all

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.,
____________

(9th Cir. 1989), cert. denied, 498 U.S. 845 (1990).

____________
Oreto, Jr.
was

only a

and Petrosino also argue

single

ECT statute

appellants, the government failed

acts

necessary for a pattern

that because there

conspiracy involving

these

to prove the two predicate

___

of racketeering.

18 U.S.C.

1961(5).

Contrary to appellants' hopes we do not see why the

possibility of

a single

only that) should

ECT statute conspiracy

infect the RICO convictions.

from other possible answers,

specific
of

were

each

is

Quite apart

we think it is enough

ECT statute conspiracies

racketeering

(and it

that the

charged as predicate acts

also
____

conspiracies

to

make

extortionate loans or collect loans by extortionate means.

-32-32-

This

court has already held in Weiner that one such ECT

______

statute conspiracy is enough for a RICO violation because the

pattern
unlawful

requirement
debt.

single ECT statute

does not

Even if the

1962(c).

jury had

to

the collection
convicted only

conspiracy, the one charged

happens to suffice under

U.S.C.

apply

We

on a

in this case

the alternative prong of RICO.

need not

of

consider whether

18

a single

conspiracy shown to have embraced multiple acts of wrongdoing

might also satisfy the racketeering prong where unlawful debt

was

not involved so that at least two racketeering acts were

required.
Confronting

Weiner
______

appellants

argue

that

our

construction of section 1962(c) in Weiner renders the statute

______
unconstitutional.
for

one theory

theory

They say that requiring two predicate acts

of liability

violates

the

but only

equal

protection

because one defendant may be

another under

the same

so we

statute.

"rationally

must uphold
related

to

a different

clause,

apparently

found guilty more readily

employs no suspect classification

right,

one for

The

the

State's

Independent School District

____________________________

v.

statutory distinction

nor burdens a

the statute

than

if the

fundamental
disparity is

objective."

Martin, 440
______

Harrah
______

U.S. 194,

199

(1979) (per curiam).

Congress could rationally

have decided that collections

of unlawful debt were central to

-33-33-

the evils at which RICO was

directed.

Accordingly, it

make guilt more

in

other

this rationale

forms of

was

the actual

irrelevant

Minnesota
_________

v. Clover Leaf Creamery Co.,

__________________________

above) gives

some

to

statement

reason to

activity.

motivation for

distinction is

although Congress'

cases than

racketeering

statutory

(1981),

chosen to

easily provable in unlawful debt

cases involving

Whether

could rationally have

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

Angiulo, 897 F.2d

_______

holding that any vagueness

the

"pattern" under

vague

as

to

be

argument in United
______

1169, 1179-80 (1st

Cir. 1990),

challenge to section 1962(c) must

show "that the meaning and scope of

was unclear

argue that

RICO's `pattern' element

and vague" as applied to the defendants' conduct

in the particular case.

The appellants in the

present case

have not even attempted such a demonstration.

Oreto, Jr. and Petrosino
of

the

evidence to

support

counts of the indictment.

each challenge the sufficiency

their

convictions on

various

Oreto, Jr. contends that there was

insufficient evidence
both

to support the

on the four counts

jury's guilty verdicts

of conspiracy to collect extensions

-34-34-

of credit by extortionate means, 18 U.S.C.

RICO counts.

and on the

He argues that the first two conspiracy counts-

-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

used to secure the convictions.

As to the wiretaps, both FBI Special Agent Gianturco and
Massachusetts State Trooper
familiarity with
speakers on the
loans
14)

Thomas Foley testified to

the voices
tapes for

in question and
the jury.

their

identified the

Further, the

illegal

to Mario Singarella (count 10) and Gary Plotkin (count

were

corroborated,

by

documentary

evidence

in

the

loanshark organization's 'Bible'; Daniel Forte, a cooperating

co-conspirator,
involvement in

testified

at

trial

efforts to collect

as

to

each loan.

Oreto,

Jr.'s

The evidence

was more than sufficient.

Oreto, Jr. challenges his conviction on count
indictment,

involving extortionate

Joseph Brangiforte, on the

identify
was

67 of the

collection of a

loan to

ground that Brangiforte failed to

Oreto, Jr. as the person Brangiforte repaid.

ample

other

evidence,

involved with the

however, that

Brangiforte loan:

Oreto,

Brangiforte

There

Jr.

was

testified

that he made a payment to Oreto, Jr. near the Wonderland MBTA

station;

the

government

Brangiforte and

produced

wiretap

Oreto, Jr. discussing the

recordings

of

loan; and Trooper

-35-35-

Foley testified that

he saw Brangiforte

give Oreto, Jr.

an

envelope.

Again, the evidence was sufficient.

inability

to pick out Oreto, Jr. in the courtroom was fodder

for

jury argument,

conviction.

but

is

not

See United States

___ _____________

in

itself

Brangiforte's

fatal

v. Doherty, 867
_______

(1st Cir.), cert. denied, 492 U.S. 918 (1989).

to

the

F.2d 47, 67

____________
Oreto,
question.
loan to
was

Jr.'s challenge

to count

16 presents

That count involved extortionate

a closer

collection of a

Eleanor Kelley, and Oreto, Jr. claims his conviction

improper because

Eleanor Kelley .

"[t]here was

simply no

. . was in fear."

evidence that

The debtor's subjective

fear is not itself an element of the offense

under 18 U.S.C.

894, although actual fear may be pertinent evidence.

"[I]t

is the nature of the actions of the person seeking to collect

the

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

ask Kelley to contact Oreto,

The government

also showed that

Jr.
of

Sr. about

the loan itself

After a reading of the testimony as to

we think that
nature of

produced

the

government offered

was grossly usurious.

that

mental state

Polizzi, 801
_______

business in order to
the

the

See generally 1 Sand, supra,

_____________
____ _____

Here, the
and

not

a reasonable jury

the loan,

-36-36-

its

could determine

interest rate,

and the

appellants' collection methods were

employed by

legitimate

not of the sort commonly

lenders, and

that

the

appellants'

tactics carried an implicit threat of violence.

Oreto,
demonstrate
control of
only that
time."
over

Jr. also

argues that

that

"participated

he

the government
in

the

the alleged enterprise" because

he "was

There

a mere collector

is no

a long period.

Jr. was directly

connection

with his

evidence is

short period

of

showed that Oreto,

least four transactions

father's loansharking enterprise.

sufficient to sustain both

or

participation extend

Here, the evidence

involved in at

management

the proof showed

for a

requirement that

failed to

in
The

the substantive RICO

and RICO conspiracy convictions.

Petrosino
evidentiary

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

in the enterprise's profits

that

he

of

the

neither that

nor participate

an extended period of time, so long as the predicate act

requirement is met.

Petrosino participated in the collection

of seven separate loans by extortionate means.

Those actions

are sufficient.

-37-37-

Lastly, appellants objected

at trial

to the

following

instruction given by the trial court to define the concept of

"reasonable doubt":
A reasonable doubt is a real doubt, based upon
reason and common sense after careful and impartial
consideration of all the evidence in the case. A
reasonable doubt does not mean beyond all doubt.
Rather it means a doubt based upon reason.
Appellants' challenge rests upon the Supreme Court's decision
in

Cage
____

equate

v. Louisiana,
_________

reasonable doubt with

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

now argue that their

instruction.

held to

"substantial

convictions must be
See Sullivan
___ ________

v.

Louisiana, 113
_________

S. Ct. 2078 (1993)

(erroneous instruction on

reasonable doubt cannot be harmless error).

The objection to the
it is ambiguous.

phrase "substantial doubt" is that

If taken to

mean "large" or something like

it, the instruction may mislead the jury into thinking that a
small but reasonable doubt

is no bar to conviction.

phrase would be

"unexceptionable" if taken to mean

doubt

"something

must

be

Victor v. Nebraska,
______
________
used

more than

But the
that the

speculative

114 S. Ct. 1239, 1250 (1994).

one."

The term

here, "real," is not subject to the same ambiguity; its

natural antonym is "unreal"

or" imaginary," which are proper

descriptions of what would not be a reasonable doubt.

Id. at
___

-38-38-

1250.

Boilerplate might

error.
Affirmed.
________

be preferable,

but there

was no

-39-39-