By a 2-1 vote, the federal appeals court judges rule that there was enough evidence to find the ex-mayor of Providence guilty.

08:04 AM EDT on Wednesday, August 11, 2004

BY MIKE STANTON
Journal Staff Writer

Journal photo / Steve Szydlowski A somber Artin H. Coloian, a former aide to former Providence Mayor Vincent A. Cianci Jr., reacts with disappointment yesterday to the rejection of Cianci's appeal.

Ever since his stunning corruption conviction two years ago, Vincent A. "Buddy" Cianci Jr. had held out hope for his appeal, hope that has nurtured him over the past 20 months in prison.

But hopes for another Cianci comeback, in a storied career of comebacks, suffered a devastating blow yesterday, when a federal appeals court in Boston upheld the former Providence mayor's conviction for racketeering conspiracy.

The long-awaited decision was not without some classic Cianci drama, as one of the three judges dissented and said that he would have overturned the conviction.

But in the end, Cianci -- who was unbeaten in six races for mayor, winning once by 709 votes and another time by 317 votes -- didn't have the votes.

In a 2-1 decision, the 1st U.S. Circuit Court of Appeals ruled that there was sufficient evidence to convict the longest-serving mayor in Providence history of running a criminal enterprise out of his corner office at City Hall.

The court also upheld the convictions of Cianci's codefendants, former top aide Frank E. Corrente and former political fundraiser and tow-truck operator Richard E. Autiello. Both men are serving prison terms at Fort Devens in Massachusetts.

The odds now become steeper for Cianci, who is serving five years and four months at the federal prison in Fort Dix, N.J. He can ask the entire 10-judge panel of the 1st Circuit to review his case, or appeal directly to the U.S. Supreme Court. Few such petitions are granted amid the thousands of appeals each year.

"Everyone was very optimistic," said a somber Artin H. Coloian, Cianci's former chief of staff. In his recent conversations with Cianci, he said, they discussed their hopes of prevailing, based in part on the court's lengthy deliberations.

"We thought that time was in his favor," said Coloian. "Obviously, this is a big letdown."

Some Cianci supporters were also disappointed that the dissenting opinion was not more forceful. It did not address several issues that Cianci had hoped would help him carry the day. Still, Cianci's appellate lawyer, John A. "Terry" MacFadyen III, said that the issues raised by Circuit Judge Jeffrey R. Howard could provide ammunition for further appeals.

"This is a case that shows that reasonable people can differ," said MacFadyen. "Two judges went one way and one went another. Who knows where the next round will lead us?"

But at the U.S. Attorney's office in Providence, the federal prosecutor who handled the appeal, Assistant U.S. Attorney Donald C. Lockhart, voiced confidence that the dissent was too narrow to offer Cianci much hope.

"The dissent identifies only one issue favorable to the defendants," Lockhart said. "We have enormous respect for Judge Howard, but we frankly don't see it as an issue that's likely to take [the defendants] much further."

The decision was released in midafternoon. By late afternoon, MacFadyen had alerted Cianci's counselor at Fort Dix, though he had not yet had an opportunity to speak to his client, who works in the prison library.

"I'm sure he knows," said MacFadyen.

THE 86-PAGE decision illustrates the scope and complexity of the case, covering a range of issues from the sufficiency of the evidence to more arcane questions of law.

The central question was whether the evidence presented at a two-month trial in the spring of 2002 -- and the conduct of Cianci, Corrente and Autiello -- fit the crime of racketeering conspiracy.

In an indictment spanning nearly a decade, Cianci and his codefendants were charged with extorting kickbacks and campaign contributions from tow-truck operators, property owners seeking tax breaks and other favors, a city job seeker, and others, most notably a Providence businessman -- Antonio R. Freitas -- who was working undercover for the FBI.

Freitas secretly recorded meetings and conversations with city officials, including Corrente and city tax board members Joseph A. Pannone and David C. Ead, in which corruption schemes were hatched, Cianci fundraiser tickets were purchased, and cash in envelopes was passed.

Cianci was not caught on tape himself, but his subordinates, most notably Pannone and Ead, described the mayor's role as the criminal mastermind of City Hall, who used Corrente as a buffer and a bagman. Some of the money went into Cianci's voracious campaign fund, they said; the rest, in Pannone's words on one tape, "went south."

Ead, who pleaded guilty and became one of the government's key witnesses, testified that he met with Cianci on three occasions to arrange kickbacks for favors, one involving a pledge by Freitas to pay a $10,000 kickback in a city land deal.

The jury convicted Cianci of racketeering conspiracy, but acquitted him of 11 other charges, including racketeering and other corruption charges involving the Ead bribes.

In the ensuing appeal, the defense argued that Cianci had been improperly charged with racketeering, under the federal RICO statute, and that the verdict was inconsistent, since the jury had acquitted him of all the other charges.

The government countered that there is a legal distinction between racketeering conspiracy and racketeering, and that the jury could have reasonably compromised in reaching its verdict based on the evidence.

Journal photo / Steve Szydlowski U.S. Attorney Robert C. Corrente, whose predecessor prosecuted former Providence Mayor Vincent A. Cianci Jr. and three others in Operation Plunder Dome, addresses the media after Cianci's appeal of his conviction was denied.

YESTERDAY, a majority of the appellate panel sided with the government.

Emphasizing the difference between racketeering conspiracy and racketeering, Senior Circuit Judge Norman H. Stahl, joined by Senior Judge Levin H. Campbell, summarized the evidence that he said reasonably pointed to Cianci's guilt.

"The evidence shows that the defendants, and ultimately Cianci, were the beneficiaries of most if not all of the . . . schemes," wrote Stahl. "The jury could have concluded that the schemes were designed to line Cianci's pockets as well as to maintain his political power in the City . . . all of the offenses involve trading jobs, contracts, and official acts for money, contributions to Cianci's political fund, or other items of value."

Citing the testimony of Ead, and other evidence, the court concluded that the jury "did not go out-of-bounds" in convicting Cianci of racketeering conspiracy but not racketeering. The court, wrote Stahl, was concerned with "the impracticality of a rule that would allow defendants to challenge inconsistent verdicts" and to inquire into the jury's deliberations.

"The evidence relating to those acts that were found 'unproven' by the jury was still available to the jury in its evaluation of the overall RICO charge," Stahl wrote. "The jury verdict may be a compromise reflecting evil preparations by all three defendants but some doubt about implementation by Cianci and Autiello." (Corrente was also convicted of racketeering).

"In other words, though the evidence might not have shown completed commission of the racketeering acts, it could have led the jury to find the requisites of a RICO conspiracy among the defendants to commit the racketeering acts."

In his dissent, Judge Howard voiced concerns about the inconsistency of the jury verdict, especially in light of a special verdict form that jurors filled out detailing their decision to acquit on specific crimes charged.

"I still must dissent from the majority's conclusion that there is sufficient . . . evidence to sustain defendants' RICO-related convictions," he wrote.

Howard's dissent focused on a technical but fundamental question -- how the alleged racketeering enterprise was defined. The defense argued that the indictment incorrectly combined legal elements of a city government with criminals committing illegal acts -- a technical impossibility since a legally constituted arm of government cannot be inherently corrupt.

The majority opinion rejected that: "Defendants' argument misses the mark because neither the indictment nor the jury instructions compel the conclusion that the City itself had to have formed an unlawful intent." A RICO enterprise, Stahl wrote, can consist of "municipal entities and human members" who corrupt those entities -- "Cianci, Corrente and Autiello -- those who wielded influence, exerted pressure, and effectively controlled the City's various components -- are the criminals here."

There was sufficient evidence, Stahl wrote, that "Cianci and Corrente exercised substantial control over the municipal entities named as members of the enterprise. Cianci was the City's mayor and Corrente its chief of administration. They were alleged and were shown to have used their positions and influence to sell municipal favors on a continuing basis . . ."

But Judge Howard took a different view. He argued that "neither Cianci nor Corrente was shown to have so dominated the affairs of the departments, offices, and agencies claimed to be associated with the . . . enterprise that each of these municipal entities" had become their "alter ego."

"There was in this case significant evidence of public corruption," Howard wrote. "Perhaps the government could have proved that Cianci and Corrente ran the Office of the Mayor or the Office of the Director of Administration [Corrente's title] as a RICO enterprise." But the prosecution overreached, Howard concluded, by trying to describe the entire City of Providence as "a de facto organized crime syndicate."

Howard questioned the widespread use of RICO in cases of political corruption, voicing "fear" that it could be misused "in the political context, where persons who have made a contribution to a politician routinely receive favorable treatment from offices or agencies over which the politician has influence."

Howard's dissent did not address several other defense issues that yesterday's majority opinion shot down, among them Corrente's and Autiello's appeals of their bribery convictions, the defendants' challenge of the Pannone tapes and the refusal of the trial judge, Ernest C. Torres, to allow the defense to play a tape from a previous investigation in which Cianci tells an undercover FBI agent that he won't tolerate corruption.

WORD OF THE Cianci decision spread quickly, eliciting different responses.

"There was never a doubt in my mind as to what the decision would be," said Freitas, who said that he learned the news from FBI Special Agent W. Dennis Aiken, who led the investigation, dubbed Operation Plunder Dome. "We're better off in Providence today than we were, with all that corruption."

Ead, who heard the news on the radio, said that the decision vindicates him for telling the truth -- in spite of the jury's rejection of several of the charges based on his testimony.

"I guess I don't have that believable a face, but I told the truth," he said. "I'm glad they upheld it -- because he's as guilty as sin."

Three years ago, when Cianci was indicted, he waved the indictment defiantly at a City Hall news conference and vowed: "I'm going to fight this as far as I can. I'm going to go all the way to the [U.S.] Supreme Court, to The Hague [an international court of law], wherever they want to go."

Yesterday, in the wake of Cianci's defeat at the 1st Circuit, his longtime friend and aide, Coloian, predicted that the ex-mayor would fight on.

"It's a horrible tragedy," said Coloian, who was acquitted, in a separate trial, of charges that he served as Cianci's bagman on a $5,000 bribe that Ead delivered on behalf of a city job applicant. "I know it didn't occur. I know he doesn't belong where he is.

"But he's remarkably well adjusted. He's got a very, very strong constitution . . . He's mentally the toughest guy I know. He'll survive this, too."

Cianci's projected release date, according to the Bureau of Prisons Web site, is July 28, 2007, though the appellate court yesterday did reserve judgment on another Cianci appeal to reduce his sentence.

As for future options, Coloian said, "If I were Buddy, I'd take it to The Hague."

With staff reports from Cathleen F. Crowley.

Mike Stanton can be reached at 277-7724, or mstanton [at] projo.com

Excerpts from the majority ruling in the appeal

"WE AGREE with the government's assertion that the jury's enterprise finding is sustainable because there was sufficient evidence that Cianci and Corrente exercised substantial control over the municipal entities named as members of the enterprise. Cianci was the City's mayor and Corrente its chief of administration. They were alleged and were shown to have used their positions and influence to sell municipal favors on a continuing basis. The evidence indicates a close relationship "in fact" among them, the City they managed, and Cianci's political organization. Cianci, as mayor, and Corrente and Autiello, as city officials, were strongly connected to and had considerable influence over the various City employees and departments. Their illegal schemes could function only with the cooperation, witting or unwitting, of certain City agencies and officials. Insofar as Cianci's and the other defendants' criminal schemes were or would be carried out by themselves and others acting in their municipal roles, the City -- if only to that extent -- did share in the same common criminal purpose. (3) The defendants were not only human members of the enterprise, but were the City's official leaders with considerable express and implicit authority over its departments and employees. Moreover, the enterprise's corrupt purposes were aimed at exploiting the City's resources. It is because of this control and these close connections that the jury could have imputed the enterprise's common purpose to the City. See Masters, 924 F.2d at 1366 ('Surely if three individuals can constitute a RICO enterprise . . . then the larger association that consists of them plus entities that they control can be a RICO enterprise too.')."

"THERE WAS detailed evidence, moreover, placing Cianci, the City's mayor, in the middle of at least four of the enumerated racketeering acts. With regard to the Ronci Estate scheme, David Ead testified at trial that he suggested to Ronci's attorney that the estate settle its tax claim with the City for $100,000 in exchange for a $10,000 contribution to the Friends of Cianci. Ead met with Cianci and discussed the proposed deal. The settlement was approved by the City's Board of Tax Assessment Review. Ead testified that shortly thereafter, he was contacted by Corrente, who told him that Cianci wanted Corrente to collect the money. Ead responded that he was waiting for the Ronci attorney, to which Corrente replied, "Well you know that the Mayor he's on my back -- do your best." After receiving the money from Ronci's attorney, Ead brought the money to Corrente who put his finger on his lips and took the envelope. A tape-recorded conversation between Joseph Pannone and Anthony Freitas provided additional evidence. (5) Our dissenting brother recognizes that there was enough evidence for the jury to conclude that defendants functionally controlled the Board of Tax Assessment Review, often for criminal purposes."

"THE EVIDENCE shows that the defendants, and ultimately Cianci, were the beneficiaries of most if not all of the nine schemes. The jury could have concluded that the schemes were designed to line Cianci's pockets as well as to maintain his political power in the City. As for methods, most of the schemes involved either Cianci or Corrente calling or personally meeting with city officials and influencing municipal decision-making either through explicit or implicit orders. As the government points out, important "sub-trends" underlay the schemes. The Jere Realty Lease and the Freitas Lease dealt with the School Department. The Tow List and Maggiacomo Job involved the Police Department. The Ise and Maggiacomo Jobs both involved pawning of municipal jobs. Both the Ronci Estate and Freitas Lots schemes involved extortions for tax abatements. All of the offenses involve trading jobs, contracts, and official acts for money, contributions to Cianci's political fund, or other items of value. In most of the schemes, the money was solicited by, paid to, or collected by Corrente."

"IN ADDITION, the schemes often shared the same players. Corrente, Ead, Pannone, and Autiello were all fundraisers for the Friends of Cianci. Ead participated in the Ronci Estate, the Ise Job, and the Freitas Lots schemes, while Pannone played important roles in the Ronci Estate, the Freitas Lease, and Pay-to-Get-Paid schemes. Autiello was the chief associate in the Tow List extortion and Maggiacomo Job sale. Overall, the evidence shows that the individual racketeering acts were not isolated events but rather parts of a pattern of racketeering activity contemplated and committed by an overarching RICO conspiracy to which all three defendants, along with other co-conspirators, belonged."

"FIRST, WE reiterate that the jury's acquittals on the substantive counts and negative decisions on the racketeering acts listed under Count Two do not make the evidence underlying those counts and acts irrelevant to the RICO conspiracy count. Second, we repeat that the evidence as a whole, viewed in the light most favorable to the verdict, is sufficient as to the RICO conspiracy convictions for all three defendants. Accordingly, defendants' reliance on United States v. Morales, 185 F.3d 74 (2d Cir. 1999) (reversing RICO convictions where evidence established that defendants had all been incarcerated early in the period of racketeering activity alleged in the indictment), is misplaced. The evidence at trial, covering acts that occurred from 1991 to 1999 as charged in the indictment, tracked and satisfied the RICO elements and factual allegations contained in the indictment.

"MARINO, 277 F.3d at 33 (citations and internal quotations omitted). Hence, as an evidentiary matter, the government presented more than enough to establish that, if there was an enterprise, the two, at various times, played important roles in the direction and supervision of the enterprise's operations. Neither was merely "peripherally involved with the enterprise." The direct testimony of Kenneth Rocha demonstrated that not only was Autiello aware of the general existence of the enterprise, but that he was central to furthering the goals of the enterprise, specifically as the collection agent for Corrente in obtaining payments from the Tow List members. His participation in the Maggiacomo Job scheme again evinced his awareness of the general enterprise as well as his direct involvement in the direction and management of the enterprise. As for Corrente, we need not rehash the evidence that amply establishes his role in the enterprise. The fact that he was Cianci's right-hand man, in addition to evidence specifically showing his directorial or supervisory involvement in individual racketeering acts, puts him in the heartland of "associate" RICO liability as set out in Reves."