06-3280 | Omnilex

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06-3280-cr (L), 06-3396-cr (CON)
USA v. Eppolito

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: October 18, 2007
Decided: September 17, 2008)

Docket Nos. 06-3280 (L), 06-3396 (CON)

UNITED STATES OF AMERICA,

Appellant,

\- V. -

LOUIS EPPOLITO and STEPHEN CARACAPPA,

Defendants-Appellees.

Before: KEARSE, SACK, and HALL, Circuit Judges.

Appeals by the government from postverdict orders of the
United States District Court for the Eastern District of New York,
Jack B. Weinstein, Judge, dismissing indictment count that charged
defendants with racketeering conspiracy, see 18 U.S.C. § 1962 (d), as
barred by statute of limitations, see id. § 3282 (a). See 436
F.Supp.2d 532 (2006) .

Reversed.
MITRA HORMOZI, Assistant United Stat
Attorney, Brooklyn, New York (Roslynn R.
Mauskopf, United States Attorney for the
Eastern District of New York, Barbara D.
Underwood, Counsel to the United States
Attorney, David C. James, Robert W. Henoch,
Daniel Wenner, Assistant United States
Attorneys, Brooklyn, New York, on the brief),
for Appellant.

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JOSEPH A. BONDY, New York, New York, for
Defendant-Appellee Eppolito.

DANIEL NOBEL, New York, New York, for Defendant -
Appellee Caracappa.

KEARSE, Circuit Judge:

The United States appeals from orders of the United States
District Court for the Eastern District of New York, Jack B.
Weinstein, Judge, entered following jury verdicts finding
defendants Louis Eppolito and Stephen Caracappa guilty on all
counts of a superseding indictment ("Indictment") that charged
them with, inter alia, racketeering conspiracy in violation of the
Racketeer Influenced and Corrupt Organizations Act ( "RICO"), 18
U.S.C. § 1962 (d) . The district court granted each defendant a
judgment of acquittal on the RICO conspiracy count pursuant to
Fed. R. Crim. P. 29, ruling that there was insufficient evidence
of that conspiracy's existence within five years of the
commencement of this prosecution, and hence that the prosecution
of defendants on that count is barred by the statute of
limitations, see 18 U.S.C. § 3282 (a) . The court also ruled that
unless its dismissal of the RICO conspiracy count were overturned
on appeal, defendants should have a new trial on the other
counts -- which charged both defendants with distribution of and
conspiracy to distribute narcotics, and charged Eppolito with
attempted money laundering -- because the evidence on the RICO
conspiracy count may have unfairly affected the jury's

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consideration of those counts. On appeal, the government contends
principally that the evidence was sufficient to support the jury's
finding that the conspiracy continued to exist within five years
of the commencement of this prosecution, and that, in any event,
defendants' conspiracy to conceal their associations, criminal
conduct, and ongoing goals continued into the limitations period.
Finding merit in the government's first contention, we reverse
the orders of the district court and remand for reinstatement of
the jury's verdicts and the imposition of sentences.

# I. BACKGROUND

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Louis Eppolito (sometimes referred to in the trial
testimony as "Lou" or "Louie") and Stephen Caracappa (sometimes
referred to in the testimony as "Steve") are former police
detectives who were employed by the New York City Police
Department ( "NYPD") until the early 1990s. The present
prosecution was commenced on March 9, 2005; the Indictment alleged
that Eppolito and Caracappa, along with others, were leaders of a
racketeering enterprise whose principal purpose was to generate
money for its participants by assisting and protecting members and
associates of organized crime families (collectively the "Mafia") .
It alleged that from approximately May 18, 1979, through March 9,
2005, Eppolito and Caracappa conspired to conduct the affairs of
the enterprise through a pattern of racketeering activity that

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included bribery, obstruction of justice, witness tampering,
narcotics trafficking, money laundering, kidnaping, and murder.

The evidence at trial included the testimony of law
enforcement agents, former members or associates of organized
crime families in the New York City area with respect to events in
the 1980s and 1990s, and a government informant who secretly tape-
recorded his conversations with Eppolito, Caracappa, and others in
Las Vegas in 2004-2005. The jury found that Eppolito and
Caracappa had committed all of the racketeering acts alleged
against them in the Indictment and found them guilty on all of the
counts in which they were charged. As we are reviewing a Rule 29
judgment of acquittal, we describe the record in some detail,
taking the evidence in the light most favorable to the government
and in accordance with the jury's verdicts. We note also that
Eppolito and Caracappa, while endorsing the district court's
ruling that the evidence was insufficient to support the jury's
finding that the RICO conspiracy continued to exist into the
limitations period, have not challenged the sufficiency of the
evidence on the RICO conspiracy count in any other respect.

## A. Events in the New York Area

At the times pertinent to the Indictment, the New York
City area Mafia consisted of five Organized Crime Families: the
Bonanno, the Colombo, the Gambino, the Genovese, and the Lucchese.
The government's key witness at trial was Burton Kaplan, a former
associate of the Lucchese Crime Family who had been involved in,

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inter alia, narcotics trafficking, sales of stolen goods and
misbranded clothing, and attempts to negotiate stolen financial
instruments. At the time of this trial, Kaplan had served roughly
one-third of a 27-year sentence imposed on him for conspiracy to
engage in narcotics trafficking. Pursuant to his cooperation
agreement in connection with the present case, Kaplan had pleaded
guilty to, inter alia, participating in the RICO conspiracy
alleged in the present prosecution. At trial, Kaplan testified
principally that Eppolito and Caracappa were a partnership that in
1986-1993 provided various services to him as an associate of
organized crime and, through him as an intermediary, to his close
friend Anthony Casso, a Lucchese Crime Family member who in the
late 1980s became its underboss, i.e., second in command.

In the early 1980s, Kaplan had been in prison with Frank
( "Frankie") Santoro, Jr., who was loosely associated with the
Gambino Crime Family. In late 1985 or early 1986, after both men
had been released from prison, Santoro approached Kaplan and said
that Santoro had a cousin who was a police detective, whom he
identified as Eppolito, and that "Eppolito and his partner" -- only
later identified to Kaplan as Caracappa (Trial Transcript ("Tr. ")
426-27) -- would, in exchange for money, provide Kaplan with law
enforcement information and other types of assistance. At that
time, Eppolito was an NYPD detective in the 63rd Precinct in
Brooklyn; Caracappa, likewise an NYPD detective, was a member of a
task force whose members included local detectives and agents of
the Federal Bureau of Investigation ("FBI"). While Eppolito

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generally had access only to information in his precinct,
Caracappa's position with the task force gave him access to a
great deal of information about both local and federal matters.
Kaplan testified that Santoro, in offering the services of
Eppolito and Caracappa, said Eppolito could

search around and find out if I had anything pending
against me or if I was under any kind of surveillance
and that . . . [Santoro's] cousin had a partner that
had a prestigious job and between the two of them,
they could help me and if I had any problems
physically, they could help me.

(Tr. 515.)

Frankie approached me and said that his cousin was a
detective and that if I wanted his cousin [could] get
me information and could help me if I ever have a
problem and could probably help me on ongoing
investigations.

He offered to get me information on any
investigation that was going on and if I had a
serious problem in the street, he offered to do
murders for me.

(Tr. 426, 427; see also id. at 516 ("He said that if I had any
kind of serious problem, that -- that he himself, his cousin and his
cousin's partner were capable of doing a murder. ") .)

Kaplan initially rejected Santoro's offer, explaining that
he "didn't want to do business with any cops" because it "possibly
could come back and haunt [him] if one of them would later on in
life become an informant." (Tr. 427-28.) Santoro assured Kaplan
"that [Santoro] had done things with them previously and that they
were good stand-up guys and that he would have no fear of
anything, doing anything with them." (Tr. 517.) The term "stand

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up, " in the vernacular of organized crime, means refusing to give
information to law enforcement agents, even if that refusal means
receiving punishment and going to jail. (Tr. 748; see also id. at
551-52 (conversely, to "go bad" means "become [an] informant [] ") . )

### 1. The Murder of Israel Greenwald

Notwithstanding his initial rejection of Santoro's offer
of assistance from Eppolito and Caracappa, Kaplan soon had a
change of heart. In early 1986, having learned that his
participation in a scheme involving stolen Treasury bills was in
danger of being exposed, Kaplan hired Santoro, Eppolito, and
Caracappa to murder one of the other participants in the scheme,
Israel Greenwald.

Santoro, Eppolito, and Caracappa carried out their mission
by following Greenwald's car on a highway and turning on flashing
lights on their car, thereby causing Greenwald to stop on the side
of the road. They told Greenwald that he was a suspect in a
hit-and-run and that they needed to take him to the police station
for a lineup. They then drove Greenwald instead to the premises
of an auto repair shop in Brooklyn, where Santoro shot and killed
him. Kaplan paid Santoro $30,000 for the murder; Santoro kept
$5,000, unbeknownst to Eppolito and Caracappa, and divided the
remaining $25, 000 among himself, Eppolito, and Caracappa.

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### 2. The Murder of Jimmy Hydell

In mid-1986, there was an unsuccessful attempt on the life
of Casso, who was then the acting underboss of the Lucchese Crime
Family. The attack took place in the 63rd Precinct, to which
Eppolito was assigned. Kaplan then for the first time revealed to
Casso that Kaplan had a friend whose "cousin works in that
precinct and that he's a good guy and that he could probably help
us" to identify Casso's attackers. (Tr. 574.) Without disclosing
to Casso either Santoro's identity or defendants' names, Kaplan
told Casso that " [Santoro] and his cousin, [and] his cousin's
partner" "had done something for [Kaplan] . . . and that [Casso
and Kaplan] could trust them." (Id.) Casso asked Kaplan to see
what the friend, the cousin, and the partner could find out.

Kaplan relayed the request to Santoro, who said he would
speak to Eppolito. Santoro thereafter gave Kaplan a packet of
information that had been collected by Eppolito and Caracappa.
The packet contained, inter alia, crime scene reports listing
Casso's attackers, including Gambino Crime Family associate Jimmy
Hydell and Nicky Guido, and describing the cars that had been
used, including the license plate numbers and the addresses of the
registered owners.

When Santoro delivered the information packet, he
declined Kaplan's offer of payment, saying that the information
was "a gift from my cousin and his partner. This is just to show
you the kind of things that they would do." (Tr. 575.) Santoro
said, "my cousin and his partner won't take any money for

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something where somebody close to us got hurt. We're not that
kind of people." (Tr. 580-81.)

After Kaplan gave the information packet to Casso and
described the methods that Santoro, Eppolito, and Caracappa had
used with Greenwald, Casso had Kaplan offer Santoro, Eppolito, and
Caracappa $35, 000 to kidnap Hydell and turn him over to Casso.
They accepted the offer. They were cautioned not to kill Hydell,
as Casso wanted to extract from Hydell information as to who had
ordered or approved the attempt on Casso's life.

In mid-October 1986, Santoro, Eppolito, and Caracappa
kidnaped Hydell and put him into the trunk of a car that had been
provided by Casso. Santoro drove the car to a Toys "R" Us parking
lot in which he had agreed to meet Kaplan and gave Kaplan the car
keys; Eppolito and Caracappa had followed Santoro to the parking
lot and remained at the entrance in order to provide protection.
Casso, who was standing in the parking lot, asked Kaplan who the
men were at the entrance; Kaplan recognized them as Eppolito and
Caracappa, although they had not been formally introduced to him.
Kaplan responded that they were his friend's cousin and the
cousin's partner; Casso instructed that everyone should leave.
Kaplan gave Casso the keys to the car in whose trunk Hydell had
been placed, and Kaplan, Santoro, Eppolito, and Caracappa
departed.

Casso took Hydell to a meeting of high-ranking members of
the Lucchese and Gambino Crime Families and questioned him as to
who had ordered the attempt on Casso's life. Hydell named three

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members of the Gambino Crime Family, including Edward Lino, see
Part I.A.8. below. Casso thereafter killed Hydell. Having
offered to pay $35,000 for the kidnaping of Hydell, Casso added a
$5,000 bonus. Kaplan delivered the $40,000 to Santoro, who kept
the bonus for himself and divided the remaining $35,000 among
himself, Eppolito, and Caracappa.

### 3. The Murder of "Nicky Guido"

After Hydell's kidnaping and murder, Casso instructed
Kaplan to ask Santoro for the address and a photograph of Nicky
Guido, who was mentioned in the packet of information on the
attempted assassination of Casso. Santoro, after consulting
Eppolito, reported to Kaplan that Eppolito would provide the
information for $4,000. Casso considered the request greedy,
given that he had added an unsolicited $5, 000 bonus for the Hydell
kidnaping; he refused to pay for the information on Guido,
stating that he would get it another way. On December 25, 1986,
Casso caused the murder of a man called Nicky Guido, but it was
not the Nicky Guido referred to in the information packet.
Santoro and Eppolito told Kaplan that Casso would have gotten the
"right" Nicky Guido if Casso had been willing to pay $4,000 for
the information.

# 4. Eppolito and Caracappa Begin Dealing Directly With Kaplan and Are Put on Retainer

Although during the initial period of their association
Kaplan had seen Eppolito and Caracappa on two or three occasions,

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he had never been introduced to them, and he dealt with them only
through Santoro. In September 1987, while in the company of
someone Casso had targeted for assassination, Santoro was killed.
Only then did Kaplan reveal to Casso that Santoro was the friend
whose cousin was one of the police detectives who were providing
them with information.

After Santoro's death, Eppolito sent Santoro's widow to
one of Kaplan's stores to ask whether Kaplan would like to meet
Eppolito directly. Thereafter, Eppolito and Kaplan met in the
Santoro home, while Caracappa remained outside, watching the house
from a car. Eppolito proposed that he and Caracappa would "give
[Kaplan] everything that we get on every family, any bit of
information we get about informants, about ongoing investigations,
wiretaps, and imminent arrests" (Tr. 620) in exchange for a
retainer of $4,000 per month. " [M]urder contracts" were to cost
extra. (Tr. 621.)

Kaplan relayed Eppolito's offer to Casso, who accepted it
on the condition that Eppolito and Caracappa "work exclusively for
us, " i.e., the Lucchese Crime Family, and not give any information
to members of other crime families. (Tr. 625-26.) For the next
several years, Eppolito and Caracappa gave confidential law
enforcement information to Kaplan, who relayed it to Casso; and
Casso, through Kaplan, paid Eppolito and Caracappa $4,000 per
month.

When asked at trial what Casso did with the information
received from Eppolito and Caracappa, Kaplan testified that

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if it was information about somebody from a different
family, then Casso would pass it to the different
families. He'd pass some information to the Bonannos
and he passed some information to the Genovese. If
it was someone that had something to do with him and
they were informants, Casso had them killed.

(Tr. 442; see also id. at 165, 665-66 (describing relay by Casso
of such information to high-echelon members of the Colombo Crime
Family) .) Kaplan testified that Eppolito said he liked doing
business with Kaplan and Casso "because when [Eppolito] gave us
information people got taken care of that deserved it, and that in
the past he gave information to other people and they never acted
on it." (Tr. 657.)

Although Eppolito and Caracappa knew they were dealing,
through Kaplan, with Casso, Kaplan never told Casso Eppolito's and
Caracappa's names. Even in 1992, when Eppolito published an
autobiography called Mafia Cop that contained photographs of
himself and Caracappa, and Casso told Kaplan he recognized them as
the men who had helped Santoro kidnap Hydell, Kaplan refused to
confirm that the detectives on Casso's payroll were Eppolito and
Caracappa.

After Santoro died, Kaplan initially communicated
principally with Eppolito. The two had a falling-out, however,
when Eppolito sought more money and insisted on meeting Casso, and
Kaplan adamantly refused. Thereafter, Kaplan communicated
principally with Caracappa.

Throughout, the methods used for communications between
Kaplan and Eppolito and/or Caracappa were designed to avoid
disclosure or suspicion of their association. Kaplan never used

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his home telephone to contact Eppolito or Caracappa; he used pay
phones or cell phones. He purchased cell phones sometimes in his
own name, sometimes in the names of others; and at times he had
other persons purchase cell phones for him. When calling each
other on the telephone, Kaplan, Eppolito, and Caracappa did not
use their own names but frequently used the code name "Marco."
Kaplan's personal telephone book contained the real names of many
members or associates of organized crime families; only Eppolito
and Caracappa were given coded entries -- the name "Marco."

Kaplan generally met Eppolito and/or Caracappa in private
places, such as their homes late at night when no one was on the
street, or at the homes of relatives; or at locations where it
would be difficult to identify or overhear them, such as on the
shoulder of a busy highway; or in out-of-the way places, such as a
cemetery in Staten Island. Kaplan testified that "from the
beginning of [his] relationship with Mr. Eppolito and Mr.
Caracappa, . . . one of the goals of the relationship [was] to
conceal the relationship." (Tr. 1144.)

## 5. The Murder of John "Otto" Heidel

Soon after Eppolito and Caracappa were placed on retainer,
Casso asked Kaplan to have them find out whether Lucchese Crime
Family associate John "Otto" Heidel was cooperating with the
authorities. Eppolito enlisted the help of Caracappa and later
reported to Kaplan that Heidel was, in fact, cooperating. Kaplan

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gave the information to Casso; in October 1987, Casso had Heidel
killed.

Thereafter, Eppolito gave Kaplan audio tapes that Eppolito
said he had removed from Heidel's apartment while investigating
the murder. He told Kaplan, "this will prove that I was right,
that the guy was cooperating, and that he was taping people."
(Tr. 651.) Kaplan gave the tapes to Casso, who subsequently
informed Kaplan that the contents of the tapes confirmed that
Heidel had been cooperating with the authorities by recording
conversations .

## 6. The Murder of Anthony Dilapi

In the late 1980s, Lucchese Crime Family member Anthony
Dilapi, who was on parole, was suspected of having become a
government informant. And when summoned by Casso to account for
gambling establishments that Dilapi controlled, Dilapi did not
appear for the meeting but instead sold his establishments and
left town. Casso asked Kaplan to have Eppolito and Caracappa try
to locate Dilapi. Caracappa wrote to Dilapi's parole officer
indicating that he needed to contact Dilapi as part of an ongoing
police investigation, and he was ultimately able to give Kaplan an
address for Dilapi in California. Kaplan relayed the information
to Casso, who sent three men to kill Dilapi. Dilapi, however,
recognized one of the men and escaped, moving to a new location.

At Casso's request, relayed by Kaplan, Caracappa then
25 obtained and reported Dilapi's new address in Hollywood.
In

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February 1990, Casso had Dilapi killed in the garage of his new
apartment building.

## 7. The Murder of Bruno Facciola

In August 1990, Eppolito, who had retired from NYPD in
early 1990, reported to Kaplan that there were impending arrests
in an investigation focusing on New York's jewelry district. As
Bruno Facciola, a Lucchese Crime Family capo, was not to be
indicted but would merely be named an unindicted coconspirator,
Eppolito told Kaplan that Facciola was a government cooperator.
Though Casso at that time was a fugitive, see Part I.A. 11. below,
Kaplan remained in communication with him and relayed Eppolito's
information about Facciola. In August 1990, Casso had Facciola
killed.

## 8. The Murder of Edward Lino

As discussed in Part I.A.2. above, Casso had interrogated
his would-be assassin Jimmy Hydell and had been informed that one
of the men who ordered the attempt on Casso's life was Edward
("Eddie") Lino. Beginning in 1987 or 1988, Casso sought to have
Lino killed. Casso asked Kaplan to offer Eppolito and Caracappa
$65,000 to kill Lino.

Eppolito and Caracappa accepted the contract, eventually
carried it out, and were paid $70,000. Kaplan testified that he
learned of their success in November 1990 when Eppolito told him,

I got good news. I said, what. He says, we got

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Eddie Lino. I said, what do you mean you got him?
He says, we killed him.

(Tr. 723.) When Kaplan asked how they had done it, Eppolito
indicated that they had begun with the same ploy used on
Greenwald and Hydell -- i.e., following Lino on a highway and using
flashing lights to have him stop on the side of the road. After
Eppolito spoke briefly to Lino, Caracappa "shot [Lino] a number of
times. [Kaplan asked] how come Steve shot him? [Eppolito] said,
Steve is a much better shot." (Id.)

A few days later, in payment for the Lino killing, Kaplan
relayed to Eppolito a box containing $70,000 in $100 bills. (See
Tr. 724-25.)

### 9. Kaplan's Marijuana Distribution Business

In the mid-1980s and again beginning in 1991, Kaplan was
engaged in marijuana trafficking. During those periods, the least
he distributed in a given year was between 500 and 1,000 pounds.
In his best year, he distributed 12,000 or 13,000 pounds of
marijuana (see Tr. 443), for which his personal profit was
" [p] robably a couple of million dollars" (id. at 832) .

Kaplan had several discussions with Eppolito and Caracappa
about his marijuana business during those years.

Both of them had asked me together and separately if
I wanted them to help me in any way that they would --
they would follow my truck in a car or surveil my
warehouses and see if I had any heat on me, and
any [ ] way that they could help me, they were willing
to do it.

They said they don't want any money for it, it's
just a friendship situation, and I told them I

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appreciate it but we're doing certain things together
and this has nothing to do with that, and I don't
want to involve them in that business.

(Tr. 783.)
Kaplan said it was not frugality that led him to
decline their offer; "they offered to do it for nothing, out of
6 friendship." (Id.)

### 10. The Attempted Murder of Herman Tabak

In 1991, Kaplan was also involved in a scheme involving
stolen checks, collaborating with some of his co-participants in
the earlier stolen Treasury bill scheme, see Part I.A.1. above.
When cash was not forthcoming from the stolen checks as expected,
one of Kaplan's collaborators said he thought one of the other
participants, Herman Tabak, might be cooperating with the
authorities. Kaplan then solicited Eppolito and Caracappa to kill
Tabak.

Kaplan testified that Eppolito, after consulting with
Caracappa,

came back to me and he told me that he would take
care of it for me, and I told him good, go ahead and
do it. And he says, I have one problem with this.
He says, I don't have any place to put him. We don't
have -- we don't have a problem shooting him but of
[sic] no place to put the body.

And I said, come over to my warehouse in Staten
Island and I had another warehouse a block away and
I took Louie over there and showed him. There was a
garage pull up door there and I said just bring the
body to me and pull into this garage and I'll take
care of it from that point.

30 (Tr. 753.)

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However, the attempt to kill Tabak failed. When Eppolito
and Caracappa accosted him, telling him he was under arrest, Tabak
escaped into the street, screaming that they were trying to kill
him. Eppolito and Caracappa quickly departed. Thereafter, Kaplan
abandoned the plan to kill Tabak, being persuaded that Tabak was
sufficiently terrified that he would no longer consider
cooperating with the government .

### 11. Other Obstructions of Justice

In addition to giving Kaplan and Casso information that
obstructed justice by helping Casso to eliminate potential
witnesses against members of organized crime, including the
instances described above, Eppolito and Caracappa provided
information designed to allow Casso and others to escape self-
incrimination or arrest. For example, in the late 1980s, Eppolito
informed Kaplan that a trailer in New Jersey, used by a Lucchese
Crime Family member, had been bugged and that its telephone was
tapped. Kaplan passed that information to Casso; Casso relayed it
to the owner of the trailer, who promptly had the bugging and
wire-tapping devices removed. Eppolito also told Kaplan of a bug
in a New Jersey restaurant that was owned and frequented by
members of the Genovese Crime Family. Casso passed that
information to the owner of the restaurant, and the members
"stopped talking
on the bug." (Tr. 664.)

In May 1990, Eppolito made an urgent call to Kaplan and
arranged to meet him on the Long Island Expressway. Eppolito gave

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Kaplan information, which he had received from Caracappa, that
Casso and Lucchese Crime Family boss Victor Amuso, among others,
3 were about to be arrested. Kaplan alerted Amuso and tried to
reach Casso; Casso was away but was alerted by Amuso. By the next
day, both Amuso and Casso had become fugitives, gone "on the lam. "
(Tr. 683-85.)

While Casso was a fugitive, Kaplan maintained contact with
him, meeting with him a score of times and continuing to relay to
him sensitive law enforcement information received from Eppolito
and Caracappa and to relay from Casso $4,000 a month to Eppolito
and Caracappa. Casso was arrested in 1993.

### 12. Eppolito and Caracappa Retire from NYPD

In early 1990, Eppolito retired from NYPD. For a time, he
remained in the New York area, and although he no longer had
direct access to police files, he continued to participate in
providing services to Kaplan and Casso. For example, in May 1990,
he relayed to Kaplan information collected by Caracappa about the
impending arrests of Casso and Amuso, see Part I.A.11. above; in
August 1990, he advised Kaplan that Facciola was a government
cooperator, see Part I.A.7. above; in November 1990, he tracked
down and helped to kill Lino, see Part I.A.8. above; in 1991, he
participated in the attempted murder of Tabak, see Part I.A.10.
above.

In the early 1990s, Eppolito moved to Las Vegas. Kaplan

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remained in contact with Caracappa, continuing to use the same

2
covert methods of communicating with him.

Caracappa retired from NYPD in 1992. He remained in New
York until, in the latter part of 1996, he too moved to Las Vegas.

### 13. Kaplan Becomes a Fugitive

As indicated above, Casso, having been warned of his
impending arrest through information received from Eppolito and
Caracappa, had become a fugitive in 1990; he was caught and
arrested in 1993. In March 1994, Kaplan's attorney called Kaplan
at his home in Brooklyn to alert him that Casso had probably
begun to cooperate with the government. Within hours, Kaplan
himself became a fugitive; he promptly left New York, and the next
day he flew to the west coast, en route to Mexico.

Before leaving New York, however, Kaplan went to
Caracappa's home to alert him:

I was very embarrassed and I told Steve, I said we
got a real problem and I told him Anthony Casso went
bad and that I am going on the lam and that I'm
coming up to tell him because I would expect that
there is going to be a lot of publicity in the next
couple of weeks, but I wanted him to know that I was
going on the lam because he's not going to see me,
that I didn't go bad, and that he could rely on me
and he said to me, do you need any money. Do you -- do
you need me to take care of your wife? He was very
gracious, and I said no, Steve. Thank you very
much. I have money. And he says well, if you ever
do need money in the future, just let me know, like a
good friend would, and he said, I'll take care of
your wife.

And I said thank you very much. I said, but you
know, there is someone else involved in this too.
There's Louie. He's in Vegas already and I always
felt Louie was a little flamboyant, and I said, can

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you control Louie? Can you take care of the
situation with him? He said, Louie's been my partner
and I trust him and don't worry about it. I said
okay.

(Tr. 768-69.)

Kaplan surmised to Caracappa that the government would not
reach a cooperation agreement with someone who had killed as many
people as Casso had unless Casso were willing to give information
that was sensational. Kaplan expressed concern that Casso's
cooperation would therefore focus on Eppolito and Caracappa.
Kaplan knew that, despite his refusal to give Casso the
detectives' names, Casso believed he knew who they were: He had
told Kaplan that he had seen the pictures of Eppolito and
Caracappa in Eppolito's book, Mafia Cop, and had recognized them
as two of the men in the Toys "R" Us parking lot who had assisted
in the Hydell kidnaping.

Kaplan's concern was, in general, prophetic. Following
Casso's apparent decision to cooperate with the authorities, there
was "a heavy, heavy amount of publicity" on the subject of police
detectives accused of "serious, serious crimes." (Tr. 924.)
Eppolito later told Kaplan that "the press, " for a time, was
"awful" and that Eppolito and Caracappa had retained attorneys.
23 (Tr. 777.)

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After alerting Caracappa, Kaplan fled to Mexico, where he
remained for several months. He then returned to the United
States to reside under an assumed name in Portland, Oregon. At
the end of 1994, Kaplan moved to Las Vegas, where he remained
until the summer of 1996. He then returned to New York, where he

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was soon arrested on account of his marijuana trafficking
business, see Part I.C. below.

## B. Events in Las Vegas

After moving to Las Vegas in the early 1990s, Eppolito
published his autobiography, Mafia Cop, in 1992. The book
portrayed Eppolito as a man who had relatives in the Mafia, while
he himself had rejected a life of crime and become a police
detective. As indicated above, Eppolito included pictures of
himself and Caracappa in the book, allowing Casso, who had never
been told their names, to identify them.

### 1. Interactions Among Kaplan, Eppolito, and Caracappa

Kaplan, after his sojourn in Mexico, took up residence in
Portland but visited Las Vegas several times to see a lady friend.
During such a visit in August or September 1994, Kaplan had his
friend place a call from a public telephone to Eppolito, who was
listed in the telephone book, and arrange for Eppolito to meet
Kaplan the next day at a local supermarket. This would be the
first of several meetings between the two at that location.

Near the meeting time, Kaplan loitered around the slot
machines in the market's vestibule until Eppolito arrived. The
two then strolled around the supermarket, with Kaplan pushing a
cart, discussing their respective situations and the publicity
surrounding Casso's arrest and cooperation. Kaplan testified,
" [t]his was the first time I had seen him since the problem

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happened with Casso and I went on the lam, and I asked him what
was going on, is he all right, is he under any pressure, is he
getting any heat." (Tr. 777.) Eppolito responded that he had
initially been bothered by the press, but that matters had
improved.

Eppolito also told Kaplan that Caracappa would be moving
to Las Vegas and was building a house diagonally across the
street from Eppolito's house. Caracappa eventually moved to Las
Vegas in the latter half of 1996 and indeed lived across the
street from Eppolito. From the fall of 1994 until he moved to Las
Vegas permanently, Caracappa visited Las Vegas several times and
met with Eppolito and Kaplan, Kaplan having moved to Las Vegas at
the end of 1994.

In November 1994, Kaplan offered to lend Eppolito money
from Kaplan's narcotics trafficking business. Eppolito had
inquired whether Kaplan could arrange for Eppolito to borrow
$75, 000 from a loanshark, explaining that he had made a down
payment on the construction of one house, had found another house
he preferred, and had been unable to persuade the builder to
return his money before a new buyer was found for the first house;
thus, Eppolito needed a bridge loan. Eppolito said he was willing
to pay the loanshark interest of $750 a week. Kaplan, although a
fugitive, had continued with his marijuana trafficking business,
and he said that, rather than see Eppolito incur such an interest
obligation, Kaplan would ask his marijuana supplier to agree to a
delay in payment so that Kaplan could lend Eppolito the money. In

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early 1995, Kaplan had cash delivered to him from New York and
gave Eppolito $65,000 in 13 envelopes containing $100 bills. In
1996, Eppolito repaid $55,000, giving Kaplan $30,000 or $35,000 in
cash "in an envelope that came from the bank" and "checks for the
rest . "
(Tr. 802.) Kaplan forgave repayment of the remaining
$10,000.

In early 1996, Kaplan, knowing that Caracappa's wife sold
a line of clothing through the QVC home-shopping television
channel and was friendly with a woman who sold jewelry on QVC,
sought Caracappa's help in attempting to get QVC to offer for sale
a product in which a friend of Kaplan's had an interest.
Caracappa mentioned that his wife's friend was going to serve as
Caracappa's alibi for the killing of Eddie Lino by saying that she
and her husband had dined with Caracappa and his wife that night.
Caracappa arranged for Kaplan and Kaplan's friend to meet with a
QVC executive.

After moving to Las Vegas, Caracappa opened a business
that provided security services. He employed Eppolito in that
business. Eppolito, in the meantime, was attempting to write and
sell movie screenplays. He had a film production company, of
which he was president and Caracappa was vice president.
Caracappa read everything that Eppolito wrote.

2\. Interactions of Eppolito and Caracappa With Stephen Corso

Stephen Corso, who testified at trial, was a New York
accountant who had embezzled more than $5 million from his

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clients. Arrested without fanfare in 2002, he became a government
cooperator, eventually posing as a Mafia associate. He moved to
Las Vegas and began to frequent a restaurant that was a hangout
for members of organized crime. There Corso met John Lombardozi,
who described himself as an associate of the Gambino Crime Family;
Lombardozi introduced Corso to John Mercaldi, who ran a
prostitution business in Las Vegas and described himself as the
right -hand man to Jerry Chili, the apparent successor to
leadership of the Bonanno Crime Family. Corso subsequently had
conversations with Chili, who told Corso to say he was "with Jerry
from the Fulton Fish Market" (Tr. 1423). Mercaldi thereafter
introduced Corso to others as " 'with us'" and " 'very good friends
with Jerry. '" (Tr. 1425.) In the spring of 2003, Corso began
wearing a wire to record his conversations with members of
organized crime.

Mercaldi introduced Corso to Gambino Crime Family member
Michael Dibari; Mercaldi and Dibari introduced Corso to John
Frate. John Frate's father, to whom Corso was also introduced,
was Mike Frate, who identified himself as the right-hand man to
Joe Bonanno, the then-head of the Bonanno Crime Family. In
October 2004, Dibari asked Corso to meet with Eppolito.

## a. Funding for Eppolito's Script-Writing Ventures

Eppolito's name had not previously been mentioned by the
authorities to Corso, who, by that time, had been wearing a wire
for a year and a half. Dibari said he hoped Corso could help to

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raise money for the production of a movie written by Eppolito;
Corso consulted FBI Special Agent Kevin Sheehan. Sheehan
instructed Corso to tell Dibari that Corso had no interest in
meeting Eppolito because Eppolito was a cop.

A week or 10 days later, John Frate and Mike Frate
arranged to meet with Corso. At that meeting, they handed him an
envelope containing Eppolito's screenplay, called "Murder at
Youngstown." Corso told the Frates that he was hesitant to meet
with Eppolito because Eppolito was a cop. Corso testified that
in response, "Mike Fr [ate] said that he understood my concern, "
but that Corso "shouldn't worry" because "Lou was one of us
. . . . " (Tr. 1565.)

Corso reported this meeting to Sheehan; a few days later,
14 Sheehan gave approval for Corso to meet with Eppolito. Thereafter
John Frate took Corso to meet Eppolito at Eppolito's home. Frate
attended some of the ensuing meetings, as he "wanted to be a part
of the whole process" "of funding the movie." (Tr. 1445.)
During the next few months, Corso met with Eppolito more than 20
times. As Corso continued to wear a wire, most of his
conversations with Eppolito -- and later with both Eppolito and
Caracappa -- were recorded; at least one of the meetings with
Eppolito was held in Corso's "office," in which the FBI had
installed recording equipment and hidden cameras.

An early meeting of Corso, Eppolito, and John Frate to
discuss funding for "Murder at Youngstown" -- for which Eppolito
said he needed $5 million -- was attended by one of Corso's clients

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who controlled a public company. The client suggested that his
company could merge with Eppolito's film company and raise money
through a public offering of stock. Eppolito was favorably
disposed to that suggestion and said he would want some of his
friends to receive stock in the offering; one of them was
Caracappa.

Corso was introduced to Caracappa at the end of January
2005. He attended several dinner meetings with Eppolito and
Caracappa and noted that the relationship between Eppolito and
Caracappa appeared to be very close. Corso testified that at one
such meeting, Caracappa told Corso he trusted Corso, and that "if
he didn't trust [Corso, Corso] wouldn't be there and
wouldn't be meeting with Lou." (Tr. 1637. )

Eppolito was also involved in other attempts to earn
money. In addition to seeking $5 million to fund "Murder at
Youngstown, " Eppolito told Corso he was willing to write a
screenplay for or about anyone who would pay him $75,000; when
Eppolito sold the screenplay, he would pay the investor 50 percent
of all profits. When Corso asked if Eppolito cared what a
potential investor did for a living or where the money came from,
Eppolito responded, "' [n]o, I don't give a fuck about nothing'"
(Tr. 1621) ; and, without Corso's having made any mention of
narcotics trafficking (see id. at 1621-22), Eppolito said that an
investor could be "the biggest drug dealer
in the

U. S. [, Eppolito] didn't care, " so long as Eppolito did not have to
transport the drugs (id. at 1621; see also id. at 1622 (Eppolito

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said, "' [s]eventy-five comes in a fucking shoebox [i.e., in cash],
that is fine with me, I don't care, I had people given [sic] me
money before' ") ) .

In December 2004, Corso, on instructions from Sheehan,
told Eppolito that Corso had lined up an investor who would send
$75, 000 for Eppolito to write a script and to send the investor 50
percent of whatever profit resulted from its sale. Corso told
Eppolito that the money was narcotics proceeds from Florida;
Eppolito indicated that did not care. Corso told Eppolito that
the money might "be coming from somebody in the Mafia" (Tr. 1618) ;
Eppolito indicated that he did not care. Eppolito said, "'I got
people from the Gambino family that call me all of the time.
[They say, y]ou know, Louie, we got money, you know[; ] I says it's
not a question about your money, it's you don't have enough to
make the movie. '" (Tr. 1624.) Eppolito said Mike Frate "had
given him $25,000 in a cardboard box in cash for a partial
investment in [a] $75,000 script." (Tr. 1617-18.) Eppolito also
said he would have no objection if an investor in such a script
did not use his real name in signing their contract. "'He could
sign it John Wayne'
'I don't care what name he uses. '"
(Tr. 1627-28.)

Corso also told Eppolito that in order to avoid the filing
of currency transaction reports, federally required for wire
transfers of $10,000 or more, the $75,000 would be wired in
installments of less than $10,000. Eventually, wire transfers
totaling $14,000 were made to Eppolito's account. Although

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Eppolito was initially unconcerned about the investment's
fragmentation, he became irritated at the slow pace of its
arrival, saying, "'[a]re they in Florida. Why didn't he send a
guy with a car[.] I would have -- I would have flown there and
drove back.'" (Tr. 1640.)

## b. The Supplying of Narcotics

Corso testified that at a dinner with Eppolito and
Caracappa in mid-February 2005, he told them he was expecting a
visit from four Hollywood clients, each of whom was interested in
investing $75,000 in Eppolito's film project, and that his clients
wanted to purchase "'designer drugs'" (Tr. 1587), specifically
ecstasy and crystal methamphetamine. Corso testified that
Eppolito responded that "Tony, " his son, could handle it; both
Eppolito and Caracappa said that Guido Bravatti, a young
associate of Caracappa's, could handle it. Later that night,
Eppolito called Corso to give him Bravatti's telephone number.

On the following evening, Corso had dinner with Tony and
Bravatti. Corso told them that his clients wanted an ounce of
crystal methamphetamine and six to eight ecstasy pills; Bravatti
said there would be no problem. Tony and Bravatti indicated that
they wanted to do all they could to facilitate investments by
Corso's clients in Eppolito's film project.

The next day, Tony and Bravatti made a partial delivery at
Corso's office, saying that they had had some difficulty in
obtaining what Corso requested. They handed him an envelope

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containing somewhat less than the requested ounce of crystal
methamphetamine, and Corso paid them proportionately. The
parties stipulated at trial that that envelope had contained 25.4
grams of 64-percent-pure methamphetamine.

Tony and Bravatti never delivered to Corso ecstasy or any
additional methamphetamine. On March 3, 2005, Corso had dinner
with Eppolito, who was quite upset and told Corso not to call Tony
or Bravatti any more. Eppolito refused to tell Corso why he was
upset but became more congenial during the dinner. Corso did not
again attempt to reach Tony or Bravatti. On March 9, 2005,
Eppolito and Caracappa were arrested.

## C. Kaplan Eventually Decides To Cooperate

In the spring of 1996, one of Kaplan's New York attorneys
had informed him that it no longer appeared that Casso would be a
government witness. Kaplan returned to New York in the summer of
1996. In September 1996, he was arrested and charged with
narcotics trafficking. He testified that the authorities appeared
to be more interested in having him identify Eppolito and
Caracappa -- though no names were mentioned -- than in prosecuting him
for his marijuana offenses:

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When I was arrested, I was taken into DEA
headquarters and when I walked into the room, when
they brought me in, they had about fifteen to twenty
people in there and there was high ranking members of
the New York Police Department, inspectors, and there
was FBI agents, and DEA people. . . . The police
department said, listen, you could help yourself out
here real quick. We're interested in two dirty
cops.

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We are interested in two dirty cops and
if you want to help yourself, you want to -- if you
help us, then tell us what you know about two dirty
cops.

(Tr. 806-07.) Kaplan declined to make any statements. He was
tried for and convicted of conspiracy to distribute marijuana; he
was sentenced to 27 years in prison.

Both during his trial and after he was convicted, law
enforcement agents made repeated efforts to persuade Kaplan to
cooperate. Kaplan continued his silence for some eight years.

In the latter half of 2004, Kaplan -- then 70-odd years of
age -- decided to cooperate with the government, including in the
prosecution of Eppolito and Caracappa. At trial, he explained
why :

I was in jail nine straight years. I was on the lam
two and a half years before it. In that period of
time I seen an awful lot of guys that I thought were
standup guys go bad, turn and become informants.

And after nine years, I felt that [Eppolito and
Caracappa] were going to be indicted by the state on
this case, . . . and I didn't think that they would
stand up and I was tired of going to jail by myself,
and I would be at the defense table now and Steve and
Louie would be sitting up here.

(Tr. 454; see also id. at 813 ("I felt that one of them or both of
them would make a deal and then I would be the defendant") .)

## D. The Jury's Verdicts

As indicated above, Count One of the Indictment charged
Eppolito and Caracappa with participating in a RICO conspiracy

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that began in May 1979 and ended in March 2005. Count Two
charged Eppolito with money laundering in connection with his
attempts in 2004-2005 to receive proceeds of narcotics
trafficking; the two remaining counts charged Eppolito and
Caracappa with distributing, possessing with intent to distribute,
and conspiring with others to distribute five or more grams of
methamphetamine. The racketeering acts alleged in Count One
included the murders, attempted murders, kidnapings, and
obstructions of justice between 1986 and 1991, described in Part
I.A. above; Eppolito's conspiracy between 1994 and 1996 to engage
in unlawful monetary transactions with respect to proceeds from
Kaplan's narcotics trafficking business, described in Part I.B.1.
above; Eppolito's attempted money laundering of narcotics proceeds
in 2004-2005, described in Part I.B.2.a. above; and narcotics
trafficking by Eppolito and Caracappa in 2005, described in Part
I.B.2.b. above.

Prior to trial, Eppolito and Caracappa moved pursuant to
Fed. R. Crim. P. 12 (b) to dismiss the RICO conspiracy count on,
inter alia, statute-of-limitations grounds. They argued that the
Indictment failed to allege sufficiently that the supposed
enterprise and pattern of racketeering activity continued past the
termination of their employment with NYPD and/or their respective
relocations to Las Vegas in the 1990s. As Eppolito and Caracappa
were not indicted until March 9, 2005, they contended that no part
of the alleged RICO conspiracy offense was committed within the
five-year limitations period. The district court denied their

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motion on the ground that the issue could not be decided on the
face of the Indictment but would depend on the evidence presented
at trial.

In its summation at trial, the government urged the jury
to reject any suggestion by Eppolito or Caracappa that the RICO
conspiracy ended when they retired from NYPD in the early 1990s,
or when they moved to Las Vegas, or when Kaplan was arrested in
1996. The Assistant United States Attorney argued that "the
principal purpose [] of the enterprise was to make money, " and
defendants' ancillary purpose was to "conceal [] their involvement
in the conspiracy," in order "to protect their ability to make
money." (Tr. 2967.) He urged the jury not to

be fooled into thinking that the conspiracy ended
when the defendants retired from the force. The
evidence shows, ladies and gentlemen, that Eddie Lino
was killed after Detective Eppolito retired from the
force. The attempt on Herman Tabak's life came after
Eppolito retired from the force. The money
laundering activity that Eppolito engaged in with Mr.
Kaplan in Las Vegas occurred after [Eppolito and
Caracappa] had retired and, of course, the
activities in 2004 and 2005 with Corso occurred after
they left the police force.

(Tr. 2967-68.)
Thus, the government argued that the RICO
conspiracy had spanned the entire period alleged in the
Indictment, as Eppolito and Caracappa "received money for each
crime in New York and they broke the law for money in Las Vegas."
(Tr. 2967.)

In instructing the jury with respect to defendants'
contention that the statute of limitations barred their

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prosecution on the RICO conspiracy count, the district court
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The statute of limitations is designed to bar
conviction on racketeering crimes that ended five
years or more before the prosecution began by
indictment. The indictment here was handed down on
March 9, 2005. In order to convict the defendant of
racketeering conspiracy, you must find first that the
charged enterprise continued to exist as of March 9,
2000, five years before; that the single conspiracy
charged in count one continued to exist as of March
9, 2000; and that the defendant continued to be a
member of the conspiracy as of March 9, 2000.

A racketeering conspiracy continues to exist
until the purpose or objective of the conspiracy is
either accomplished or abandoned.

Here the indictment alleges that the principal
purpose of the enterprise was to generate money for
its members and associates by means of various legal
and illegal activities. If you find that one or both
of the defendants were at one time engaged in a
racketeering conspiracy involving the charged
enterprise but that the enterprise was no longer in
existence as of March 9, 2000, you must acquit the
defendants of the conspiracy charged in count one of
the indictment.

If you find that one or both of the defendants
were engaged in a racketeering conspiracy but that
the conspiracy was not ongoing as of March 9, 2000,
you must acquit the defendants of the conspiracy
charged in count one.

If you find that the conspiracy was still
ongoing as of March 9, 2000 but that the particular
defendant was no longer a member of the conspiracy as
of that date, you must acquit that defendant of the
conspiracy charged in count one of the indictment.

(Tr. 3268-70 (emphases added) . )

The court also pointed out that while both Eppolito and
Caracappa denied that there was a conspiracy and that they were
members of a conspiracy as charged, "each of the defendants ha [s]
raised a defense that even if the conspiracy charged existed, he

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was not a member as of March 9, 2000 because he withdrew from the
conspiracy prior to that date." (Tr. 3270.) The court instructed
that the burden of proof on the defense of withdrawal was on the
defendant asserting the defense:

Once a person joins a conspiracy of this type,
that person remains a member until he withdraws from
it. Any withdrawal must be complete and it must be
conspiracy by taking some affirmative steps to
terminate or abandon his participation in and
efforts to promote the conspiracy. The defendant
must have demonstrated some type of positive action
which disavowed or defeated the purpose of the
conspiracy.

By way of an example, a defendant may withdraw
from the conspiracy by giving a timely warning to the
proper law enforcement officials; by wholly depriving
his prior efforts of effectiveness in the commission
of the crime; by putting himself [in] a position
where he could not participate in the conspiracy; by
making appropriate efforts to prevent the commission
of a crime connected with the conspiracy; or by doing
acts which are inconsistent with the objects of the
conspiracy and making reasonable efforts to
communicate those acts to his coconspirators.

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Now, on this issue of withdrawal, the defendant
has the burden of proving whether he withdr [e]w from
the conspiracy by a preponderance of the evidence.
The burden is on him.

(Tr. 3270-71.) The court cautioned, however, that

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[t]he fact that a defendant has raised this
defense does not . . . relieve the government of its
burden of proving that there was an agreement and
that the defendant knowingly and voluntarily joined
it and that it continued until at least March 9,
2000.

Those are things the government must still prove
beyond a reasonable doubt in order for you to convict
the defendant of the crime of conspiracy.

(Tr. 3272.)

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The court distributed to the jurors a verdict sheet that
set out all of the issues the jury was to resolve. These
included, as to each defendant and as to each specific
racketeering act alleged against him, a question as to whether the
government had proved that he agreed to participate in that act.
With regard to the statute-of-limitations issue, a question was
posed with respect to the continuation or ending of the alleged
RICO conspiracy. After defense counsel objected to a question in
the form, "Do you find that the conspiracy charged in Count One
continued to March 9th, 2000" (Tr. 3334), the jury was asked:

Do you find that the conspiracy charged in Count One
ended prior to March 9, 2000?

The jury found Eppolito and Caracappa guilty on all of the
counts in which they were charged. Finding them guilty of the
RICO conspiracy charged in Count One of the Indictment, the jury
found that each defendant had agreed to participate in each of the
racketeering acts alleged against him. As to whether it "f [ou]nd
that the conspiracy charged in Count One ended prior to March 9,
2000, " the jury answered "No. "

E. The District Court's Statute-of-Limitations-Based Order of
Acquittal on the RICO Conspiracy Count

After the verdict, Eppolito and Caracappa made various
motions to set aside the verdicts. To the extent pertinent to
this appeal, Eppolito and Caracappa moved pursuant to Fed. R.
Crim. P. 29 for judgments of acquittal on the RICO conspiracy
count, arguing that the evidence at trial was insufficient to

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establish that the charged enterprise continued to exist as late
as March 9, 2000, or that the enterprise was conducted through a
pattern of racketeering activity that continued to that date. In
a Memorandum, Order and Judgment dated June 30, 2006, reported at
436 F. Supp. 2d 532 ("Eppolito I"), the court granted that motion.
Its reasoning was as follows:

In the present case, the government proved
beyond a reasonable doubt that the defendants
conspired to conduct the affairs of an enterprise
through a pattern of racketeering activity.
Moreover, although it was not required by the charges
in the indictment, the government proved that the
defendants. in fact engaged in a pattern of
racketeering activity through their involvement in at
least eight murders, two kidnapings, and various acts
of bribery, tampering, retaliation, and obstruction
of justice. The defendants, together with Frank
Santoro, Jr. and Burton Kaplan, established a
"subcontracting" arrangement with members of
organized crime, represented primarily by co-
conspirator Anthony Casso. Through this enterprise,
the defendants exploited their positions as present
or past officers of the New York City police
department in order to supply confidential law
enforcement information to Casso and to carry out
murders and kidnapings under color of law. In
exchange for their services, the defendants were
highly compensated, receiving a retainer of 4,000
dollars a month for years and an additional 25,000 to
65, 000 dollars per murder contract.

It is unclear precisely when this conspiracy
came to an end. It could be seen as having ended
when defendant Caracappa retired from the police
department in 1992, or when Casso, the defendants'
primary "client, " was arrested in 1993. It may have
lasted until Kaplan moved back to New York and was
arrested in 1996. Up until that point, some remnant
of the original enterprise arguably remained, and
there was a possible -- although minuscule -- threat of
continued racketeering activity connected to that
enterprise.

But once Anthony Casso and Burton Kaplan had
both been arrested, once the two defendants had both
retired from the police force and re-established

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themselves on the opposite side of the country, the

conspiracy

that began in

New York in

the

1980s had

come

to a

definite close.

The defendants

longer

had

access to confidential law enforcement

information and were no longer in contact with their

old

associates in the Lucchese crime family.

Their

enterprise

had effectively been put out of

business

their

own retirements

and their

compatriots'

arrests.

The government's inclusion of the four Nevada
acts does not serve to lengthen the life of this
conspiracy to within the five-year statute of
limitations. The government maintains that the jury
could have determined that these four acts were
evidence of a continuing business venture on the part
of the defendants -- a sort of "mom and pop" general
store of crime -- through which they sold members of
organized crime whatever services they were in a
position to provide from 1986 until their arrests in
2005. This theory was not supported by the evidence
at trial.

While the 1994-1996 monetary transaction
involved two members of the earlier racketeering
conspiracy -- namely, Burton Kaplan and defendant
Eppolito -- this act was essentially a personal loan
from Kaplan to Eppolito, unconnected to the original
enterprise or to any other enterprise with which the
defendants had been associated. . . . The proceeds
for this loan came from Kaplan's marijuana
trafficking business, in which neither of the
defendants had ever participated. Kaplan himself
explicitly testified that, while the defendants had
on occasion volunteered their "law enforcement "
services in aid of this business, he had turned them
down because it "had nothing to do with" the other
crimes he was committing with them during the late
1980s and early 1990s. Eppolito's agreement to take
marijuana proceeds from Kaplan was in no way a sale
of his or Caracappa's "services" to Kaplan. Rather,
it was a favor performed by Kaplan for Eppolito,
tinged, as favors between criminals often are, by an
acceptance of complicity on the part of the one
receiving the favor.

As for the 2004-2005 money laundering and
narcotics charges, these crimes are also most
accurately characterized as singular, "sporadic" acts
of criminality -- precisely the sort of criminal
activity not covered by the laws against
racketeering. . . . Drawing every inference in favor

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of the government, . . . these acts could at best be
seen as having been performed in furtherance of a
new enterprise, unconnected to the original one and
conducted through an entirely different type of
activity.

After Eppolito retired from the New York City
police department and moved to Las Vegas, he
attempted a transition from the world of law
enforcement to the world of entertainment. In
pursuit of this goal, Eppolito established an
ostensibly legitimate enterprise, "DeAntone
Productions," and began seeking investors in his
screenplays, many of which were about the world of
organized crime. According to documents admitted by
the government, Eppolito was the president of this
company and Caracappa a vice president.

The final three racketeering acts were committed
as a result of Eppolito's attempts to find investors
for a particular film project: the money laundering
grew out of Eppolito's agreement to accept funds from
an investor described by government informant Steven
Corso as a "mob guy in Florida involved in a drug
deal, " and the narcotics charges arose from both
defendants' arguable willingness to help Corso obtain
drugs that would keep prospective investors happy.
None of these acts displayed the sort of fee-for-
services arrangement typified by the New York acts
and alleged by the government to be the essence of
the defendants' continuing enterprise.

The government's attempts to rely on the nexus
of organized crime to connect the New York and Nevada
acts are unavailing, considering the significant
differences between them. That Eppolito tangentially
relied on his knowledge of, and prior association
with, organized crime in his attempts to find
investors for his new screenwriting endeavor is not
surprising, nor is it in and of itself evidence that
this enterprise was the same as the original one. A
retired contractor who opens a delicatessen in his
retirement may encourage his old employees and
clients to buy their lunches at his new store, and
time on job sites may have taught him what brand of
pastrami those customers will prefer; that does not
mean that he remains in the construction business.

Eppolito I, 436 F. Supp. 2d at 571-73 ("at best" emphasized in

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original) (other emphases ours) .

The court also rejected the government's alternative
contention that prosecution of the RICO conspiracy count was
timely because the members of the enterprise had agreed to
maintain secrecy about the existence of the enterprise, their
participation in it, and their prior crimes, and that that
agreement continued until the date of their arrests. See id. at
573.

Having concluded that judgments of acquittal should be
entered in favor of each defendant on the RICO conspiracy count,
the court also opined that, given the "overwhelming evidence" on
that count that Eppolito and Caracappa were "heinous criminals
of the most despicable crimes of violence and
·
guilty
treachery, " id. at 576, that evidence may have unfairly affected
the jury's consideration of the other three counts of the
Indictment. Accordingly, the court ruled that if its dismissal of
the RICO conspiracy count were not overturned on appeal, Eppolito
and Caracappa would be given a new trial on those other counts.

## II. DISCUSSION

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On appeal, the government contends that the district court
erred in entering judgments of acquittal on the RICO conspiracy
count, arguing that the verdicts finding Eppolito and Caracappa
guilty on that count may be upheld on either of two bases. First,
it argues that the evidence was sufficient to support findings
that the RICO enterprise whose purpose was to gain money for its

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participants by providing services to members and associates of
organized crime -- and defendants' conspiracy to conduct that
services enterprise through a pattern of racketeering activity --
continued well past March 8, 2000. Second, the government
contends that part of the RICO conspiracy, from its inception, was
an actual agreement to conceal the existence of the enterprise and
its racketeering activity, designed both to hide the participants'
past crimes and to permit them to engage in further crimes. It
argues that there was sufficient evidence to permit the jury to
find that such an agreement existed and to find that it did not
end before Eppolito and Caracappa were arrested.

In light of the principles governing our standard of
review and the general principles governing conspiracy crimes,
statutes of limitations, and the RICO elements of enterprise and
pattern of racketeering activity, we find merit in the
government's first contention and need not address the second.

### A. The Standard of Review

Rule 29 of the Federal Rules of Criminal Procedure
provides that "the court on the defendant's motion must enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." Fed. R. Crim. P. 29 (a) .
The test for sufficiency, as noted by the district court here, is
"whether a rational jury could conclude beyond a reasonable doubt
that a defendant is guilty of the crime charged." Eppolito I, 436
F. Supp.2d at 568. The court must make that determination with

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"the evidence against a particular defendant
viewed in a

light that is most favorable to the government,
and [with]
all reasonable inferences
resolved in favor of the

government .
The jury may reach its verdict based upon
inferences drawn from circumstantial evidence, and the evidence
must be viewed in conjunction, not in isolation." Id.

Our mandate on appeal reflects the same standard, as we
review the grant or denial of a judgment of acquittal under Rule
29 de novo. See, e.g., United States v. Temple, 447 F.3d 130, 136
(2d Cir.), cert. denied, 127 S. Ct. 495 (2006). We may properly
affirm a judgment of acquittal under Rule 29 only if we conclude,
considering all of the evidence, direct and circumstantial, that
"no rational trier of fact could have found the defendant guilty
beyond a reasonable doubt." United States v. Jackson, 335 F.3d
170, 180 (2d Cir. 2003). We must reverse a district court's post-
conviction Rule 29 judgment of acquittal if, "'after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. '" United States v.
Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson) ) ; see,
e.g., United States v. Scop, 846 F.2d 135, 138-39 (2d Cir.)
(applying same standard to review of claims of "insufficient
evidence of overt acts in furtherance of the conspiracy within the
five-year period prior to the indictment"), outcome altered on
rehearing on other grounds, 856 F.2d 5 (2d Cir. 1988) .

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Viewing the evidence in the light most favorable to the
government means "'crediting every inference that the jury might
have drawn in favor of the government, '" United States v. Temple,
447 F.3d at 136-37 (quoting United States v. Walker, 191 F.3d
326, 333 (2d Cir. 1999) ), and recognizing that the government's
evidence need not exclude every other possible hypothesis, see,
e.g., United States v. Espaillet, 380 F.3d at 718; United States
v. Martinez, 54 F.3d 1040, 1043 (2d Cir.), cert. denied, 516 U.S.
1001 (1995); United States v. Ragosta, 970 F.2d 1085, 1090 (2d
Cir.), cert. denied, 506 U.S. 1002 (1992). As "it is the task of
the jury, not the court, to choose among competing inferences that
can be drawn from the evidence," United States v. Jackson, 335
F.3d at 180, when there are such competing inferences, we must
defer "to the jury's choice, " United States v. Morrison, 153 F.3d
34, 49 (2d Cir. 1998). "The ultimate question is not whether we
believe the evidence adduced at trial established [the pertinent
fact], but whether any rational trier of fact could so find. "
United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998) (emphases
in original) . This

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v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) ).

traditional deference accorded to a jury's verdict
"is especially important when reviewing a conviction
for conspiracy . . . because a conspiracy by its very
nature is a secretive operation, and it is a rare
case where all aspects of a conspiracy can be laid
bare in court with the precision of a surgeon's
scalpel ."

United States v. Jackson, 335 F.3d at 180 (quoting United States

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B. Statutes of Limitations

To the extent pertinent here, § 3282 of Title 18, which
governs the time within which most noncapital federal offenses may
be prosecuted, provides that

no person shall be prosecuted, tried, or punished for
any offense, not capital, unless the indictment is
found or the information is instituted within five
years next after such offense shall have been
committed.

18 U.S.C. § 3282 (a) . Statutes of limitations are statutes of
repose. Those applicable to criminal prosecutions are principally

designed to protect individuals from having to defend
themselves against charges when the basic facts may
have become obscured by the passage of time and to
minimize the danger of official punishment because of
acts in the far-distant past.

Toussie v. United States, 397 U.S. 112, 114-15 (1970) .
"' [S] tatutes of limitations normally begin to run when the crime
is complete. '" Id. at 115 (quoting Pendergast v. United States,
317 U.S. 412, 418 (1943)).

The time at which a crime is "complete" depends largely on
the nature of the crime. Some crimes are "instantaneous"; others
are "continuing." Toussie, 397 U.S. at 122; United States v.
Kissel, 218 U.S. 601, 608-09 (1910). "A 'continuing offense' is,
in general, one that involves a prolonged course of conduct; its
commission is not complete until the conduct has run its course. "
United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995) ;
see generally United States v. Beech-Nut Nutrition Corp., 871 F.2d
1181, 1190 (2d Cir.) ("Beech-Nut") (noting that possession of
drugs with intent to distribute is a continuing crime, whereas

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receipt of stolen goods is a noncontinuing crime), cert. denied,
493 U.S. 933 (1989) .

Though some conduct, even before it is concluded, may
fit the statutory definition of a crime, thereby
permitting institution of a prosecution before the
offense is complete, see, e.g., United States v.
Cores, 356 U.S. [405, 408-09 (1958)], the limitations
period for a continuing offense does not begin until
the offense is complete, see, e.g., Toussie, 397 U.S.
at 115

United States v. Rivera-Ventura, 72 F.3d at 281.

There is, of course, an apparent "tension between the
purpose of a statute of limitations and the continuing offense
doctrine
; the latter, for all practical purposes, extends
the statute beyond its stated term." Toussie, 397 U.S. at 115
(internal quotation marks omitted). Nonetheless, such an
extension is required where "the explicit language of the
substantive criminal statute [at issue] compels [the] conclusion"
that Congress intended the offense in question to be construed as
a continuing one, as where "the nature of the crime involved is
such that Congress must assuredly have intended that it be treated
as a continuing one, " id., or where the statutory language
describing the offense "contemplates a prolonged course of
conduct," id. at 120.

Conspiracy is generally a continuing crime. See, e.g.,
Toussie, 397 U.S. at 122; Kissel, 218 U.S. at 607-08. "It is in
the nature of a conspiracy that each day's acts bring a renewed
threat of the substantive evil Congress sought to prevent. "
Toussie, 397 U.S. at 122. As conspiratorial conduct constitutes a
continuing crime, a conspiracy offense "is not complete until the

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purposes of the conspiracy have been accomplished or abandoned, "
United States v. Rastelli, 870 F.2d 822, 838 (2d Cir.), cert.
denied, 493 U.S. 982 (1989); see, e.g., United States v. Spero,
331 F.3d 57, 61 (2d Cir.) ("Spero"), cert. denied, 540 U.S. 819
(2003) .
" [T]he crucial question in determining whether the
statute of limitations has run is the scope of the conspiratorial

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agreement
11
Grunewald v. United States, 353 U.S. 391, 397

8
(1957) .

### C. General Conspiracy Principles

The essence of the crime of conspiracy, of course, "'is
the agreement
to commit one or more unlawful acts. '" United
States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006) ( "Jones") (quoting
Braverman v. United States, 317 U.S. 49, 53 (1942) ), cert. denied,
127 S. Ct. 1306 (2007). Where there is an agreement to commit an
unlawful act, " [t]hat agreement is 'a distinct evil, ' which 'may
exist and be punished whether or not the substantive crime
United States v. Jimenez Recio, 537 U.S. 270, 274
ensues . ' "

(2003) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997) )
(emphasis ours). "Where, as here, the indictment contains a
conspiracy charge, 'uncharged acts may be admissible as direct
evidence of the conspiracy itself. '" United States v. Miller, 116
F.3d 641, 682 (2d Cir. 1997) (quoting United States v. Thai, 29
23
F.3d 785, 812 (2d Cir.), cert. denied, 513 U.S. 977 (1994)), cert.
24
denied, 524 U.S. 905 (1998) .

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"' [I]n order to prove a single conspiracy, '" rather than
multiple conspiracies, "'the government must show that each
alleged member agreed to participate in what he knew to be a
collective venture directed toward a common goal. '" United States
v. Berger, 224 F.3d 107, 114 (2d Cir. 2000) ("Berger") (quoting
United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.
1990) ( "Maldonado-Rivera") ) ; see, e.g., United States v. Martino,
664 F.2d 860, 876 (1981), cert. denied, 458 U.S. 1110 (1982).

" 'The coconspirators need not have agreed on the details of the
conspiracy, so long as they agreed on the essential nature of the
plan. '" Berger, 224 F.3d at 114 (quoting Maldonado-Rivera, 922
F.2d at 963). Indeed, in order for a single conspiracy to be

found, it is not necessary that the conspirators even know the
identities of all the other conspirators. See, e.q., Blumenthal
v. United States, 332 U.S. 539, 557 (1947); Jones, 482 F.3d at 72;
United States v. Gleason, 616 F.2d 2, 16 (2d Cir. 1979), cert.
denied, 444 U.S. 1082 (1980). Where an alleged conspiracy
"encompass [es] members who neither know one another's identities
. . nor specifically know of one another's involvement, " United
States v. Sureff, 15 F.3d 225, 230 (2d Cir. 1994), it is
permissible for the jury to find that there was a single
conspiracy so long as a reasonable juror could conclude "beyond a
reasonable doubt ' (1) that the scope of the criminal enterprise
proven fits the pattern of the single conspiracy alleged in the
indictment, and (2) that the defendant participated in the alleged
enterprise with a consciousness of its general nature and

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extent. '" United States v. Rosa, 11 F.3d 315, 340 (2d Cir. 1993)
(quoting Beech-Nut, 871 F.2d at 1192), cert. denied, 511 U.S. 1042
(1994) .

Nor need the goals of all the participants be congruent
for a single conspiracy to exist, so long as the participants
agree on the "essential nature" of the enterprise and "their goals
are not at cross purposes." Beech-Nut, 871 F.2d at 1192 (internal
quotation marks omitted) ; see, e.g., United States v. Heinemann,
801 F.2d 86, 92 & n.1 (2d Cir. 1986), cert. denied, 479 U.S. 1094
(1987) . In an ordinary bribery conspiracy, for example, the goals
of the participants are not congruent, for the goal of the payer
of the bribe is to influence an action or decision by the bribe's
recipient; the goal of the bribe's recipient is to obtain money.

Further, "[c]hanges in membership, differences in time
periods, and/or shifting emphases in the location of operations do
not necessarily require a finding of more than one conspiracy."
Jones, 482 F.3d at 72; see, e.g., United States v. Martino, 664
F.2d at 876-77; United States v. Vila, 599 F.2d 21, 24 (2d Cir.),
cert. denied, 444 U.S. 837 (1979). " [C]hanges in membership do
not necessarily convert a single conspiracy into multiple
conspiracies,
especially where the activity of a single
person was 'central to the involvement of all. '" United States v.
Langford, 990 F.2d 65, 70 (2d Cir. 1993) (quoting United States v.
Moten, 564 F.2d 620, 625 (2d Cir.), cert. denied, 434 U.S. 942
(1977) ) . And "'a single conspiracy is not transformed into
multiple conspiracies merely by virtue of the fact that it may

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involve two or more phases or spheres of operation, so long as
there is sufficient proof of mutual dependence and assistance. '"
Berger, 224 F.3d at 114-15 (quoting Maldonado-Rivera, 922 F.2d at
963) ; see, e.g., United States v. Williams, 205 F.3d 23, 33 (2d
Cir.) (single conspiracy not transformed into multiple
conspiracies "simply by lapse of time, change in membership, or a
shifting emphasis in its locale of operations") (internal
quotation marks omitted), cert. denied, 531 U.S. 885 (2000);
United States v. Tramunti, 513 F.2d 1087, 1106 (2d Cir.), cert.
denied, 423 U.S. 832 (1975).

Where a conspiracy statute, such as 18 U.S.C. § 1962 (d) ,
does not require proof of an overt act and the indictment alleges
a "conspiracy [that] contemplates a continuity of purpose and a
continued performance of acts," Spero, 331 F.3d at 60 (internal
quotation marks omitted), and the government has introduced
sufficient evidence to show that such a conspiracy existed, the
conspiracy "is presumed to exist until there has been an
affirmative showing that it has been terminated, " id. (emphasis in
Spero) (internal quotation marks omitted); see id. at 60-61.
" [A] RICO conspiracy continues until the objectives of the
conspiracy are either accomplished or abandoned." Id. at 61
(internal quotation marks omitted) ; see, e.g., United States v.
Rastelli, 870 F.2d at 838; United States v. Persico, 832 F.2d 705,
713 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988). Thus,
"the statute of limitations for a RICO conspiracy does not begin
to run until the objectives of the conspiracy have been either

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achieved or abandoned." United States v. Eisen, 974 F.2d 246, 264
(2d Cir. 1992) ("Eisen"), cert. denied, 507 U.S. 1029 (1993) ; see,
e.g., United States v. Persico, 832 F.2d at 713.

Where the government has presented sufficient evidence to
show a conspiracy that has continuing purposes or goals, the
burden is on the defendant to prove that the conspiracy was
terminated or that he took affirmative steps to withdraw. See,
e.g., Spero, 331 F.3d at 60-61; United States v. Flaharty, 295
F.3d 182, 192 (2d Cir.), cert. denied, 537 U.S. 936 (2002); United
States v. James, 609 F.2d 36, 41 (2d Cir. 1979), cert. denied, 445
U.S. 905 (1980). To show that the conspiracy was terminated, the
defendant "need [s] to present evidence from which the jury could

·
f[i]nd that the goals of the conspiracy were accomplished in
some final manner." Spero, 331 F.3d at 61 (emphasis added). For
a defendant to show that he withdrew from the conspiracy, proof
merely that he ceased conspiratorial activity is not enough. See,
e.g., Eisen, 974 F.2d at 268. He must also show that he performed
"some act that affirmatively established that he disavowed his
criminal association with the conspiracy, " id. (internal quotation
marks omitted), "'either the making of a clean breast to the
authorities, or communication of the abandonment in a manner
reasonably calculated to reach co-conspirators, '" Berger, 224 F.3d
at 118 (quoting United States v. Borelli, 336 F.2d 376, 388 (2d
Cir. 1964), cert. denied, 379 U.S. 960 (1965) ). And "the
defendant must not take any subsequent acts to promote the

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conspiracy" or "receive any additional benefits from the

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conspiracy." Berger, 224 F.3d at 118.

## D. The RICO Enterprise and Pattern Requirements

To the extent pertinent to this case, the normative
sections of RICO provide as follows:

(c) It shall be unlawful for any person employed
by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity

(d) It . shall be unlawful for any person to
conspire to violate any of the provisions of
subsection . . . (c) of this section.

18 U.S.C. §§ 1962 (c), (d) (emphases added). RICO defines
"enterprise" to "include[] any individual, partnership,
corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity." Id. § 1961(4). The existence of an enterprise may be
"proved by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as
a continuing unit." United States v. Turkette, 452 U.S. 576, 583
(1981) . An "individuals associated in fact" enterprise, 18 U.S.C.
§ 1961 (4), may continue to exist even though it undergoes changes
in membership. See, e.g., United States v. Coonan, 938 F.2d 1553,
1560-61 (2d Cir. 1991), cert. denied, 503 U.S. 941 (1992) .

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The RICO statute defines " 'racketeering activity'" to
include crimes such as murder, kidnaping, bribery, and controlled
substance offenses that are felonies under state law; drug
trafficking crimes that are felonies under federal law; and other
federal crimes such as obstructing a criminal investigation,
retaliating against a witness, money laundering, and engaging in
monetary transactions in property derived from specified unlawful
activity. 18 U.S.C. §§ 1961 (1) (A), (B), (D).

As discussed below, a "pattern of racketeering activity is
. . . a series of criminal acts as defined by the statute."
Turkette, 452 U.S. at 583. The evidence used to establish the
enterprise and the pattern "may in particular cases coalesce, "
id .; and "evidence of prior uncharged crimes and other bad acts
that were committed by defendants []" may be "relevant
to
prove the existence, organization and nature of the RICO
enterprise, and a pattern of racketeering activity by each
defendant []," United States v. Diaz, 176 F.3d 52, 79 (2d Cir.),
cert. denied, 528 U.S. 875 (1999) .

RICO provides that a " 'pattern of racketeering activity'
requires at least two acts of racketeering activity, one of which
occurred after the effective date of this chapter [i.e., October
15, 1970] and the last of which occurred within ten years
(excluding any period of imprisonment) after the commission of a
prior act of racketeering activity." 18 U.S.C. § 1961 (5). The
Supreme Court in H.J. Inc. v. Northwestern Bell Telephone Co.,
492 U.S. 229 (1989), noted that this provision "does not so much

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define a pattern of racketeering activity as state a minimum
necessary condition for the existence of such a pattern, " and that
it "places an outer limit on the concept of a pattern of
racketeering activity that is broad indeed." Id. at 237. The
Court noted that the dictionary definition of " 'pattern' is an
'arrangement or order of things or activity, '" id. at 238
(quoting 11 Oxford English Dictionary 357 (2d ed. 1989) ) (emphasis
ours) , and it pointed out that

the mere fact that there are a number of predicates
is no guarantee that they fall into any arrangement
or order. It is not the number of predicates but the
relationship that they bear to each other or to some
external organizing principle that renders them
"ordered" or "arranged. " The text of RICO
conspicuously fails anywhere to identify, however,
forms of relationship or external principles to be
used in determining whether racketeering activity
falls into a pattern for purposes of the Act.

H. J. Inc., 492 U.S. at 238 (emphasis added) . The Court concluded
that

[i]t is reasonable to infer, from this absence
of any textual identification of sorts of pattern
that would satisfy § 1962's requirement, in
combination with the very relaxed limits to the
pattern concept fixed in § 1961(5), that Congress
intended to take a flexible approach, and envisaged
that a pattern might be demonstrated by reference to
a range of different ordering principles or
relationships between predicates, within the
expansive bounds set.

Id. (emphasis added) .

Looking to RICO's legislative history, the Court found
discussions showing that Congress used the term "pattern" in order
to exclude activity that was "isolated" or "sporadic" and to
require instead "the showing of a relationship between the

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and of the threat of continuing activity." Id.
predicates,
at 239 (internal quotation marks omitted) . "'It is this factor of
continuity plus relationship which combines to produce a
pattern. '" Id. (quoting Report of the Senate Judiciary Committee,
S. Rep. No. 91-617, 91st Cong., 1st Sess. (Dec. 18, 1969), at 158)
(emphasis in H.J. Inc.). The Court concluded that "RICO's
legislative history reveals Congress' intent that to prove a
pattern of racketeering activity a plaintiff or prosecutor must
show that the racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity. " H.J.
Inc., 492 U.S. at 239 (emphasis in original) .

As to relatedness, the H.J. Inc. Court noted that in
another part of the legislation that included RICO, Congress had
stated that " [c]riminal conduct forms a pattern if it embraces
criminal acts that have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not
isolated events." Id. at 240 (internal quotation marks omitted) .
The Court concluded that there was no reason to suppose that
Congress had intended any more constrained a notion as to what
relationships between RICO predicate acts would suffice to show a
pattern of racketeering activity. See id.

As to the continuity component of the RICO pattern
element, the Court noted that while continuity and relatedness are
concepts that are analytically separate, proof of the two "will
often overlap. " Id. at 239. The Court noted that "the threat of

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continuity is sufficiently established where the predicates can be
attributed to a defendant operating as part of a long-term
association that exists for criminal purposes." Id. at 242-43
(emphasis added). But because continuity or its threat may be
proven "in a variety of ways, " it is "difficult to formulate in
the abstract any general test for continuity." Id. at 241
(emphasis added) . With no general abstract test for continuity,
and with "the uncertainty inherent in RICO's pattern component, "
the Court observed that " [t]here is no obviously 'correct' level
of generality for courts to use in describing the criminal
activity alleged in RICO litigation." Id. at 241 n.3.

E. Evidence as to the Continuation of the "Services" Enterprise

In the present case, the determinations as to whether an
enterprise conducted by Eppolito and Caracappa continued to exist
into the limitations period, and as to whether the early acts and
the later acts were part of the same pattern of racketeering
activity, depend on the level of generality at which the
racketeering enterprise is defined. Our principal difficulty with
the district court's statute-of-limitations-based acquittal as a
matter of law is that the court's views of the enterprise, its
purposes, its location, and its duration were more restricted than
what was alleged in the Indictment and than what the jury could
infer from the evidence at trial.

To begin with, the district court stated that the
enterprise "consisted of" Eppolito, Caracappa, Santoro, Kaplan,

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and Casso (and unnamed others), Eppolito I, 436 F.Supp.2d at 539,
and was a "'subcontracting'" arrangement that Kaplan, Santoro,
Eppolito, and Caracappa had "with members of organized crime,
represented primarily by co-conspirator Anthony Casso, " id. at
571. The court stated that in "this enterprise, " Eppolito and
Caracappa "exploited their positions as present or past officers
of the New York City police department in order to supply
confidential law enforcement information to Casso and to carry out
murders and kidnapings under color of law." Id. (emphasis
added). The court ruled that, although perhaps ending even
earlier, "this conspiracy" came to a "definite close" when
Eppolito and Caracappa retired from NYPD and moved to Las Vegas,
"no longer had access to confidential law enforcement
information [,] and were no longer in contact with their old
associates in the Lucchese crime family." Id. This view was at
odds with the generality with which the enterprise was alleged in
the Indictment.

The Indictment loosely alleged that the RICO "enterprise"
comprised "a criminal organization" and "its members and
associates, " that its leaders included Eppolito and Caracappa, and
that its members and associates " [a]t various times" included
Santoro, Kaplan, and Casso, as well as unnamed others.
(Indictment 11 1, 2, 6.) The district court's view that, as a
matter of law, the RICO enterprise and the RICO conspiracy must
have ceased to exist no later than when both Casso and Kaplan were
in prison failed to recognize that Eppolito and Caracappa

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themselves could constitute a RICO enterprise as defined by 18
U. S.C. § 1961 (4) and interpreted by the Supreme Court in Turkette,
see Part II.D. above. There was evidence that Eppolito and
Caracappa referred to themselves as partners, that they were
associated in fact, and that they functioned as a continuing unit.
For example, while they were employed by NYPD in the 1980s, they
collaborated to provide confidential law enforcement information
to Kaplan and Casso. During both the period in which both
Eppolito and Caracappa were police detectives and the period
following Eppolito's retirement from NYPD in early 1990, Eppolito
and Caracappa committed kidnapings and murders together. In Las
Vegas in the 1990s, Eppolito started a film production company in
which Caracappa was vice president. Caracappa started a security
business in which he employed Eppolito. When Corso inquired about
a source for designer drugs for clients who might be willing to
invest in Eppolito's film, Eppolito called Corso to give him the
telephone number of an associate of Caracappa. When Eppolito and
Caracappa met with Corso in 2005, Caracappa said he trusted Corso
and that if Caracappa didn't trust him, Corso would not be doing
business with Eppolito.

On this record, we cannot conclude that the association of
Eppolito and Caracappa as partners in providing services to
members and associates of organized crime had ceased to exist
before March 9, 2000, as a matter of law. That issue was within
the province of the jury to decide as a question of fact, and the
record provided ample evidence to permit the jury to find that

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that enterprise continued to exist well into the five-year period
that preceded the commencement of this prosecution.

Further, the goals of the enterprise as alleged in the
Indictment were considerably more general than the goal described
by the district court in its opinion. The Indictment alleged that

[t]he principal purpose

of the

Enterprise

was to

generate money for its

members

and

associates.

This

purpose was implemented

by members

and

associates of

the Enterprise

through

various

legal

and

illegal

activities, including murder, attempted murder,

assault, kidnaping, criminal facilitation, bribery,

obstruction of justice,

extortion,

fraud,

money

laundering, tax evasion and narcotics trafficking.

(Indictment 1 3 (emphases added) .) Thus, although the Indictment
also alleged that the purposes of the enterprise included the
purchase and sale of confidential law enforcement information, it
in no way suggested that the enterprise's purpose was limited to
that activity. And despite the more restrictive view stated in
the district court opinion, i.e., that the RICO enterprise was
based solely on the access of Eppolito and Caracappa to official
law enforcement information and their conduct "under color of
law, " Eppolito I, 436 F. Supp.2d at 571, the jury was not required
to adopt that view.

The jury could well have inferred that Eppolito and
Caracappa sometimes sold their services to Kaplan and/or Casso in
New York as "hit" men in instances that did not require their
access to law enforcement information and did not call upon their
NYPD connections. For example, our attention has not been called
to any evidence to show that Eppolito and Caracappa used law
enforcement information in connection with the killing of Eddie

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Lino; and for that mission, Casso provided the guns. Similarly,
in Kaplan's testimony describing his hiring of Eppolito and
Caracappa to kill Greenwald and Tabak, there was no suggestion
that Eppolito and Caracappa were called upon to use any law
enforcement information. Kaplan testified that he obtained
Tabak's home and work addresses and the make of Tabak's car from
another coconspirator. (See Tr. 749-50.)

Further, there was evidence that defendants' retirements
from NYPD did not end their association with each other or with
Kaplan. Eppolito retired from NYPD in 1990 and, as summarized in
Part I.A.12. above, continued to collaborate with Caracappa in
providing services to Kaplan. And after Caracappa retired from
NYPD in 1992 and went to work for a new employer who provided him
with a beeper, Caracappa gave his beeper number to Kaplan. Kaplan
retained that number (or an updated number) for several years
thereafter. Thus, in both his 1993 and 1996 telephone books
Kaplan had Caracappa's beeper number; it was listed under the code
name "Marco." And, as discussed below, Kaplan testified that in
1994-1996, he still considered himself a possible "future money
earner for" Eppolito and Caracappa (Tr. 914-15). In sum, the jury
was not required to find that the enterprise alleged in the
Indictment was dependent on defendants' access to confidential
law enforcement information or that the enterprise ended with
defendants' retirements from NYPD.

Moreover, although the district court viewed Eppolito and
Caracappa as providing services solely to members and associates

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of the Lucchese Crime Family, the Indictment was not so limited;
it alleged that the members and associates of the enterprise
sought " [e] nrich [ment ]

through assisting La Cosa Nostra

('LCN' ), a nationwide criminal organization" (Indictment | 4 (a)
(emphasis added) ) . Nor was defendants' offer of their services so
limited. When Eppolito proposed that he and Caracappa be put on
retainer, he said they would "give [Kaplan] everything that we get
on every family." (Tr. 620 (emphasis added) . ) And indeed,
although Eppolito and Caracappa were being paid their $4,000-a-
month retainer by Casso, and Casso insisted that in return they
work only for him, Eppolito and Caracappa in fact provided
information that was designed to and did assist all of the crime
families. For example, Eppolito and Caracappa alerted Kaplan that
there was a listening device in a restaurant owned and frequented
by members of the Genovese Crime Family and that various members
of the Genovese or Colombo families had become government
informants. Kaplan testified that when information provided by
Eppolito and Caracappa concerned someone from a crime family other
than the Lucchese, "Casso would pass it to the different families.
He'd pass some information to the Bonannos and he passed some
information to the Genovese." (Tr. 442; see also id. at 665-66
(describing Casso's relaying such information to the Colombo Crime
Family) . )

In addition, there was evidence that Eppolito and
Caracappa had previously worked with members of organized crime
other than Kaplan and Casso. Santoro, who himself was loosely

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affiliated with the Gambino Crime Family, indicated as much when
he first approached Kaplan to offer the services of Eppolito and
Caracappa, "assur [ing] " Kaplan that " [Santoro] had done things
with [Eppolito and Caracappa] previously and that they were good
stand-up guys" (Tr. 517). And Eppolito himself indicated that he
had such a past history when he told Kaplan that he liked doing
business with Kaplan and Casso, "because when [Eppolito] gave
[Kaplan and Casso] information people got taken care of that
deserved it, and that in the past he gave information to other
people and they never acted on it." (Tr. 657.)

Further, in contrast to the district court's view that
defendants' relocation to Las Vegas marked the end of the
enterprise through which Eppolito and Caracappa sought to earn
money by providing services to members and associates of organized
crime, the jury could have found otherwise based on, inter alia,
Kaplan's testimony in response to cross-examination by Caracappa's
attorney :

Q
[B]y the time you were in Las Vegas
with Caracappa and Eppolito, you sure were not a
future money earner for them.

A I disagree with you there. There was never
no break in the friendship. There was just a break
in doing business with Casso.

There could have been some possible earners.
It's the same reason I went to Steve and tried to do
the QVC deal. I had the connections. Steve knew
that.

(Tr. 914-15 (emphases added) . )

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The jury could also have found that Eppolito continued to
pursue the principal goal of the enterprise in Las Vegas by,
inter alia, offering services in the nature of money laundering,
i. e., accepting "investments" of money generated by criminal
activities such as drug trafficking, and obscuring its source by
returning to the "investors" money that would come from the sale
of film scripts. Although the district court characterized the
organized crime connection to Eppolito's Las Vegas film endeavors
as "tangential [], " Eppolito I, 436 F. Supp. 2d at 572-73, the jury
was hardly required to adopt such a view. Eppolito told Corso
that "the Gambino crime family had always offered him money for
12 script [s] or for movies,
they always come to him and said
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Lou, I can give you money for this or that." (Tr. 1618; see also
id. at 1624 ("Eppolito says: 'Listen to me, I got people from the
Gambino family that call me all of the time[, saying, ] You know,
Louie, we got money, you know . . . . '").) Further, from the
evidence viewed in the light most favorable to the government, it
was clear that Eppolito had members of organized crime working to
help him find others to invest in his film project. Corso was
approached by members of two crime families seeking funding for
Eppolito's film: first Dibari, a member of the Gambino family,
and then John and Mike Frate, members of the Bonanno family;
23
Eppolito had even given the Frates a copy of his script. John
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Frate was "to be a part of the whole process" "of funding the
movie." (Tr. 1445.) And when Corso (who had been introduced as
an associate of the heir-apparent to the Bonanno Crime Family)

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told the Frates that he did not want to meet with Eppolito because
Eppolito was a cop, "Mike Fr[ate] said that he understood
[Corso's] concern" but that Corso "shouldn't worry" because "Lou
4 was one of us
It
(Tr. 1565 (emphasis added) ) .

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As discussed in Part II.C. above, a conspiracy does not
end or divide into multiple conspiracies merely because there has
been some change in membership or locale. Viewing the evidence as
a whole, the jury was entitled to take into account the testimony
that various information provided to Kaplan and Casso by Eppolito
and Caracappa as NYPD detectives was given to all the New York
area crime families; the testimony that Eppolito and Caracappa had
provided services to other members of organized crime in the past;
the testimony that Caracappa was given an opportunity in 1996 to
earn money by arranging a meeting between QVC executives and one
of Kaplan's "connections"; and the testimony and audio tapes
indicating that in Las Vegas in 2004-2005, Eppolito sought to earn
money from members of organized crime by offering a money-
laundering service and indeed was inundated with requests for that
service. This record did not permit the conclusion as a matter of
law that the retirements of Eppolito and Caracappa and the
imprisonment of Casso and Kaplan either put the
Eppolito/Caracappa services-to-organized-crime enterprise out of
business or put an end to the Eppolito/Caracappa conspiracy to
conduct that enterprise through a pattern of racketeering
25 activity.

We note that by redefining the enterprise strictly as one
limited to the use by Eppolito and Caracappa of their positions as
police detectives and the selling of confidential law enforcement
information to Kaplan and Casso, the district court relieved
Eppolito and Caracappa of their burden of showing that the RICO
conspiracy alleged in the Indictment had come to an end or of
showing withdrawal from the conspiracy. Given the evidence of the
defendants' conduct in Las Vegas, including Eppolito's avidly
seeking large sums of money from drug dealers and members of the
Mafia for scripts he would agree to write, his manifest impatience
in 2005 at the slow arrival of money from Corso's supposed Mafia
drug dealer in Florida, and the ready response of Eppolito and
Caracappa in 2005 to the request for narcotics to induce Corso's
clients to provide money for Eppolito's film, the jury was easily
entitled to find that neither Eppolito nor Caracappa had carried
his burden of showing that he had withdrawn from the conspiracy or
that the principal purpose of the enterprise as alleged in the
Indictment, i.e., earning money through providing assistance to
members and associates of organized crime, had been either
accomplished or abandoned.

We also reject the district court's view that as a matter
of law, because of the different types of racketeering activity,
the enterprise that began in the 1980s and continued into the
early 1990s could not be considered the same enterprise that
engaged in the Las Vegas conduct that included Eppolito's mid-
1990s monetary transactions involving proceeds from Kaplan's

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narcotics trafficking business, Eppolito's 2004-2005 attempted
money laundering of narcotics trafficking proceeds obtained
through Corso, and Eppolito's and Caracappa's 2005 participation
in narcotics distribution offenses. The district court reasoned
that these mid-1990s and 2004-2005 acts were "sporadic" and
"unconnected to the original" enterprise, Eppolito I, 436
F. Supp. 2d at 572, in part because the court regarded the later
acts of narcotics trafficking and laundering of the proceeds of
narcotics trafficking as "type [s] of activity" that were "entirely
different" from the racketeering acts performed in the 1980s and
early 1990s, id. But the jury, which was accurately instructed
that "the indictment allege [d] that the principal purpose of the
enterprise was to generate money for its members and associates by
means of various legal and illegal activities" (Tr. 3269 (emphasis
added) ) , could have inferred from the evidence that the conduct in
question was sufficiently similar in purpose, when viewed at the
level of generality alleged in the Indictment, to show that the
enterprise that began in New York continued to exist in Las Vegas.

For example, Kaplan testified that he had been involved in
narcotics trafficking during the period in which Eppolito and
Caracappa were working for Kaplan and Casso in New York, and that
although Eppolito and Caracappa had not actually participated in
that business, they had repeatedly offered to do so. The district
court described those offers as proffers of "'law enforcement'
services, " Eppolito I, 436 F. Supp.2d at 572; but according to
Kaplan's testimony, the offers were not so restricted. First,

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Kaplan testified that Eppolito and Caracappa had offered to assist
him in his narcotics trafficking business not only by surveilling
his warehouses to make sure that he was not being investigated,
which of course would have been a law-enforcement-related service,
but also by following him when he went to meet associates. (See
Tr. 783.) The jury was entitled to view the latter as an offer of
protection services unrelated to defendants' official positions.
Second, the offers to assist in Kaplan's narcotics trafficking
business were not limited to those two types of service but were
open-ended: Kaplan testified that Eppolito and Caracappa offered
to "help me in any way"; they said, "any[ ]way that they could
help me, they were willing to do it." (Id. (emphases added) .)

Although Kaplan also testified that Eppolito and Caracappa
offered these narcotics-trafficking-related services out of
friendship and for free, and on its face such an offer might seem
to be beyond the enterprise goal of earning money for such
services, the jury was not required to view that offer in
isolation and take it at face value. Rather, the jury could
assess the offer of free services against the background of
defendants' actions with respect to the first task that they
performed for Casso, i.e., obtaining information as to who had
made the attempt on Casso's life. Eppolito and Caracappa
assembled that information, and Santoro delivered the packet to
Kaplan stating that it was a gift and an act of friendship for
which they would not accept payment. But when Casso asked for an
address for and picture of Nicky Guido, who was mentioned in the

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packet, Santoro, Eppolito, and Caracappa demanded payment of
$4,000. The jury, assessing the evidence as a whole, rather than
piecemeal, was entitled to view the offers by Eppolito and
Caracappa of free services for Kaplan's marijuana business as,
like the original "gift" to Casso, a loss-leader that would
doubtless be followed by requests for payment for their services.

Finally, although the district court emphasized that
Kaplan had rejected defendants' offers to assist in his narcotics
trafficking business, the facts that Eppolito and Caracappa did
not actually participate in that business and that Kaplan viewed
that business as unrelated to his other activities with Casso,
were not material here. Count One charged Eppolito and Caracappa
not with the substantive crime of conducting the enterprise that
provided services to members of organized crime but rather with
conspiring to do so; it was permissible for the jury to find that
precisely such a conspiracy was reflected in their open-ended
offer of assistance to Kaplan for his narcotics trafficking
operation.

In sum, we conclude that given the level of generality at
which the Indictment alleged the principal purpose of the RICO
enterprise, the evidence, viewed as a whole and in the light most
favorable to the government, does not permit a conclusion that the
enterprise ceased to exist prior to March 9, 2000, as a matter of
law.

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F. Evidence of a RICO Pattern

As indicated in Part II.D. above, the government was
required to prove not only the existence of the enterprise, but
also agreement to participate in a "pattern of racketeering
activity." To show such a pattern, the government was required
to "show that the racketeering predicates [we]re related, and that
they amount [ed] to or pose [d] a threat of continued criminal
activity." H.J. Inc., 492 U.S. at 239 (emphasis omitted). To
prove relatedness, the government may show either that the
individual predicate acts were directly related to each other or
that they were related to the enterprise in a way that made them
"indirectly connected to each other. " United States v. Locascio,
6 F.3d 924, 943 (2d Cir. 1993) (emphasis in original), cert.
denied, 511 U.S. 1070 (1994); see, e.g., United States v.
Indelicato, 865 F.2d 1370, 1383 (2d Cir.) (en banc) ("two
racketeering acts that are not directly related to each other may
nevertheless be related indirectly because each is related to the
RICO enterprise"), cert. denied, 491 U.S. 907 (1989) .

The H. J. Inc. Court inferred that Congress intended that
the relatedness of RICO predicate acts could be shown by proof
that they "have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not
isolated events." 492 U.S. at 240 (internal quotation marks
omitted) (emphases added) . Thus, "the concept of a pattern of
racketeering activity
is broad indeed": the list of

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specific possible similarities is illustrative rather than
definitive; the examples are stated in the disjunctive; and the
residual clause -- "otherwise
interrelated by distinguishing
characteristics" -- is open to "a range of different ordering
principles." Id. at 237, 238. As the H.J. Inc. Court said,
" [t]here is no obviously 'correct' level of generality for courts
to use in describing the criminal activity alleged in RICO
litigation." Id. at 241 n.3.

Variations in the types of acts performed could of course
persuade a factfinder that the racketeering acts are not related.
But where there are other similarities, such as in participants or
purpose, variations in the nature of the racketeering acts do not
mean that there is no RICO pattern as a matter of law. As the
Seventh Circuit noted in United States v. Masters, 924 F.2d 1362
(7th Cir.), cert. denied, 500 U.S. 919 (1991), " [a] criminal
enterprise is more, not less, dangerous if it is versatile,
flexible, diverse in its objectives and capabilities.
Versatility, flexibility, and diversity are not inconsistent with
pattern." Id. at 1367. Where the government presents evidence
from which it could permissibly be inferred that the criminal acts
have some rational common denominator or fit into a particular
order or arrangement, the question of whether the acts are related
is one of fact for the jury.

In the present case, the evidence was ample to allow the
jury to find that the persons offering or performing the
racketeering acts always included Eppolito and usually included

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both Eppolito and Caracappa; that the recipients of these services
were members or associates of organized crime; and that the
principal purpose of the enterprise was to earn money for Eppolito
and Caracappa through providing those services. Although the
nature of the services that were performed or attempted varied
widely, that was simply because a broad array was offered. For
example, the very first proffer to Kaplan of the services of
Eppolito and Caracappa was (a) for the furnishing of confidential
law enforcement information, and (b) for the commission of
murders. (See Tr. 426-27, 515-16.) Plainly, these two are
disparate types of services. In addition, as discussed in the
preceding section, Eppolito and Caracappa repeatedly offered to
provide Kaplan with, inter alia, security services for his
narcotics trafficking business -- i.e., yet a third type of
assistance -- and they offered to help him in that business in
"any [ ]way that they could" (Tr. 783), a broad offer indeed. The
jury was entitled to view the offers of Eppolito and Caracappa to
provide assistance to members and associates of organized crime as
general and open-ended -- as was alleged in the Indictment -- and thus
as encompassing defendants' conduct in Las Vegas, which included
Eppolito's offers and attempts to launder the proceeds of
narcotics trafficking and other organized crime activities, and
Eppolito's and Caracappa's involvement in narcotics trafficking in
order to induce would-be investors to give them money for a film
in whose funding members of organized crime were integrally
involved.

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The district court's narrow focus on the agreement of
Eppolito and Caracappa to provide confidential law enforcement
information as the be-all and end-all of the enterprise and of the
conspiratorial agreement was thus inconsistent with the
allegations of the Indictment and disregarded or discounted the
above evidence. The weighing of the evidence, however, was within
the province of the jury as finder of fact. Where a given
partnership has offered a variety of services to a defined
category of customers, it is not entitled to a ruling that as a
matter of law its services do not constitute a pattern simply
because the offered services were varied.

Finally, as to the need to prove continuity or the threat
of continuity, the H.J. Inc. Court noted that the government may
meet that burden "in a variety of ways, thus making it difficult
to formulate in the abstract any general test for continuity. "
492 U.S. at 241 (emphasis added). The Court also noted, however,
that proof of continuity and relatedness "will often overlap, "
id. at 239, and that "the threat of continuity is sufficiently
established where the predicates can be attributed to a defendant
operating as part of a long-term association that exists for
criminal purposes, " id. at 242-43 (emphasis added). Plainly, the
evidence described above was sufficient to permit the jury to find

that Eppolito and Caracappa operated as part of just such an
association. The fact that there was a gap of some eight years
between proven racketeering . acts did not as a matter of law
preclude a finding of pattern or continuity, for Congress

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expressly defined pattern to include two or more acts of
racketeering activity within a period (excluding any period of
imprisonment) of 10 years. See 18 U.S.C. § 1961 (5) .

In sum, we conclude that Eppolito and Caracappa were not
entitled to acquittal on the RICO conspiracy count on the theory
that either their "services" enterprise or their conspiracy to
conduct that enterprise through a pattern of racketeering activity
had ended before March 9, 2000.

# CONCLUSION

We have considered all of the arguments of Eppolito and
Caracappa in opposition to the government's appeal and, for the
reasons stated above, have found them to be without merit. The
judgments of acquittal ordered by the district court are reversed,
and the matter is remanded for reinstatement of the jury's
verdicts and the imposition of sentences.

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(L), 06-3396-cr (CON) USA v. Eppolito

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