United States v. Thomas Zichettello, Frank Richardone, Ronald Reale, Richard Hartman, James J. Lysaght, and Peter Kramer

Following a three and one-half month jury trial before Judge Batts, Ronald Reale, the former President of the New York City Transit Police Benevolent Association ("TPBA"), Richard Hartman, a disbarred lawyer who was the TPBA's former labor negotiator and insurance broker, and James J. Lysaght and Peter Kramer, partners in the law firm Lysaght, Lysaght and Kramer ("LL&K"), who received millions of dollars in legal fees from the TPBA in return for kickbacks, appeal from their convictions and sentences. These appellants were convicted of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. 1962, for their role in corrupting the TPBA and transforming it into a RICO enterprise through bribery and other illegal acts. Reale and Hartman were also convicted of various substantive offenses. Frank Richardone, a former Treasurer of the TPBA, pleaded guilty to mail fraud and related crimes. Richardone appeals only from his sentence. (For convenience purposes, "appellants" will refer only to the defendants who went to trial unless otherwise specified.)

This appeal involves a unique set of circumstances. Appellants' opening briefs advanced substantial claims of error based on instructions to the jury concerning aiding and abetting that were found in the official trial transcript. In its brief, the government responded by arguing that the instructions were not error or at least not reversible error. The government thereafter moved this court pursuant to Rule 10(e)(2), see Fed. R. App. P. 10(e)(2), to amend the portion of the trial transcript containing the challenged instructions. The motion was based on evidence that the transcript originally prepared by the court reporter was altered by someone in the district judge's chambers to conform to what was believed to be the version actually read to the jury. We conclude that the trial court committed no reversible error in the unusually lengthy, difficult and complex RICO conspiracy trial that is the subject of this appeal, although we must take a long and arduous detour to arrive at that result. For the reasons set forth below, the government's motion is granted. Because we reject appellants' remaining arguments on appeal, we affirm.

a) The Charges

Given the number of defendants and charges against them, we are obliged to describe those charges at length, although the reader may prefer to skip this section and use it for reference only where needed.

On September 15, 1997, the government filed a thirty-nine count indictment, S5 96 Cr. 1069 (DAB), against Reale, Hartman, Lysaght, and Kramer.1 Counts One and Two charged them with participating and conspiring to participate in the affairs of the TPBA through a pattern of racketeering in violation of 18 U.S.C. 1962(c) & (d). These counts also alleged that the appellants had committed eleven racketeering acts in furtherance of the charged enterprise, including bribery, mail fraud, wire fraud, money laundering, and witness tampering.

Counts Three through Nineteen charged the appellants with crimes relating to the alleged racketeering acts. Count Three charged them with conspiring to defraud the Internal Revenue Service in connection with the filing of false individual tax returns by three TPBA officers -- Reale, Thomas Zichettello, a former TPBA First Vice-President, and Raymond Montoro, a former TPBA Treasurer (sometimes the "TPBA Officers") -- in violation of 18 U.S.C. 371. Counts Four through Eight charged Reale with tax evasion, in violation of 26 U.S.C. 7201. Counts Nine and Ten charged appellants with mail fraud in connection with monthly bribes of approximately $1,800 and quarterly bribes of approximately $18,000 that Hartman, Lysaght, and Kramer paid to the TPBA Officers during certain time periods, in violation of 18 U.S.C. 1341, 1346, and 2. Count Eleven charged Reale and Hartman with wire fraud in connection with a kickback Hartman paid to the TPBA Officers in connection with Hartman's designation by the TPBA as broker to sell whole life insurance policies issued by the Metropolitan Life Insurance Company ("Metlife") to TPBA members, in violation of 18 U.S.C. 1343, 1346, and 2. Counts Twelve through Fourteen charged Reale with mail fraud related to bribes paid to the TPBA Officers by the partners of the law firm Agulnick & Gogel ("A&G"), in violation of 18 U.S.C. 1341, 1346, and 2. Count Fifteen charged Reale and Hartman with conspiracy in connection with a fraudulent scheme to obtain matching campaign funds from the New York City Campaign Finance Board ("NYCCFB") for Reale's 1993 campaign to win the Democratic nomination for New York City's Public Advocate, in violation of 18 U.S.C. 371. Count Sixteen charged Reale and Hartman, and Count Seventeen charged Reale, with wire fraud in connection with the campaign finance scheme, in violation of 18 U.S.C. 1343 and 2. Count Eighteen charged Reale with money laundering in connection with the campaign finance scheme, in violation of 18 U.S.C. 1956(a)(1)(B)(i) and 2. Count Nineteen charged Reale with witness tampering, in violation of 18 U.S.C. 1512(b)(3) and 2.

Counts Twenty through Thirty-Nine charged Hartman and Kramer with conspiracy and substantive tax offenses related to the operation of Hartman's insurance brokerage business and its transfer to a partnership owned by Lysaght's and Kramer's spouses, in violation of 18 U.S.C. 371 and 2, and 26 U.S.C. 7201, 7206(1), 7206(2), and 7206(5).

Prior to trial, the district court severed Counts Twelve through Fourteen, which related to bribes A&G paid Reale, and the corresponding racketeering acts -- Racketeering Acts Six through Eight of Counts One and Two. See United States v. Reale, No. S4 96 CR. 1069, 1997 WL 580778, at *11 (S.D.N.Y. Sept. 17, 1997). The district court also severed Counts Twenty through Thirty-Nine, the tax offenses arising from the transfer of Hartman's insurance business. See id. at *13.

At the close of the government's case, it voluntarily dismissed Racketeering Act One, which related to monthly $1,800 bribes paid by Hartman, Lysaght, and Kramer to Reale, but only insofar as it named Lysaght. The government also voluntarily dismissed Racketeering Act Three, which charged that Hartman, Lysaght, and Kramer had paid a $100,000 bribe to Reale in connection with the life insurance scheme. On appellants' Rule 29 motions, see Fed. R. Crim. P. 29, the district court dismissed Count One -- the substantive RICO charge -- against Hartman, Lysaght, and Kramer, but not Reale. The district court also dismissed Counts Three, Nine, Ten, Eleven, Seventeen, and Eighteen, and Racketeering Act Ten, which charged Reale with having committed wire fraud and money laundering in connection with the campaign finance scheme.

The redacted and renumbered indictment2 submitted to the jury contained ten counts. Count One charged Reale with Racketeering from 1990-1996 in violation of 18 U.S.C. 1962(c). Count Two charged Reale, Hartman, Lysaght, and Kramer with Racketeering Conspiracy from 1990 to 1996 in violation of 18 U.S.C. 1962(d). The indictment specified six Racketeering Acts: (i) monthly $1,800 cash bribes paid by Hartman and Kramer and received by Reale; (ii) receipt and payment in early 1992 of a $150,000 cash bribe in connection with a $750,000 payment by the TPBA to LL&K; (iii) receipt and payment of quarterly $18,000 cash bribes in 1993 and 1994; (iv) receipt and payment of a bribe arising out of the life insurance scheme, against Reale and Hartman; (v) wire fraud in connection with the campaign finance scheme, against Reale and Hartman; and (vi) tampering with a witness during a federal investigation, against Reale. Counts Three through Seven charged Reale with tax evasion. Counts Eight and Nine charged Reale and Hartman with wire fraud conspiracy and wire fraud in connection with the campaign finance scheme. Finally, Count Ten charged Reale with witness tampering.

b) Evidence at Trial

At all pertinent times, the TPBA was a labor union that represented, in collective bargaining with the City, approximately 3,000 transit police officers employed by the New York City Transit Authority ("NYCTA"). The TPBA was also responsible for administering certain pension and health and welfare benefit funds for members or retirees. The TPBA's operating expenses were paid from a general fund that was financed primarily by members' dues and that, under the TPBA's bylaws, could be used only for legitimate expenses in the course of TPBA's business.

The government showed that Reale, together with Hartman, Lysaght, and Kramer, used the TPBA as a piggy-bank available to enrich themselves almost at will and to aid Reale's campaign for Public Advocate (the "Reale Campaign"). The evidence offered by the government included the testimony of Montoro,3 a former TPBA Treasurer, of Zichettello, a former TPBA First Vice-President, and of more than a dozen corroborating witnesses; and thousands of financial and other documents.

Viewed in the light most favorable to the government, see United States v. Joyner, 201 F.3d 61, 67 (2d Cir. 2000) (citing Glasser v. United States, 315 U.S. 60, 80 (1942)), the evidence demonstrated that: (i) between 1990 and 1994, Hartman, Lysaght, and Kramer paid the TPBA Officers more than $400,000 in cash bribes in exchange for the TPBA's paying to LL&K more than $2 million in legal and consulting fees; (ii) Hartman paid bribes to the TPBA Officers so that he could be named the "broker of record" to sell whole life insurance policies to TPBA members; and (iii) in 1993, during the Reale Campaign, Reale used TPBA funds to pay campaign expenses and both Reale and Hartman were involved in schemes whereby they paid individuals to make sham contributions totaling tens of thousands of dollars to the campaign so that Reale could obtain matching funds from the New York City Campaign Finance Board ("NYCCFB"). A more detailed description of the evidence against the appellants follows.

1) Bribes and Kickbacks Paid by Lysaght and Kramer

Before Reale became President of the TPBA in 1989, the law firm Agulnick & Gogel ("A&G") served as its general counsel. However, Zichettello, as TPBA First Vice-President in the Reale administration, sought new attorneys. In the course of his search, Zichettello met Hartman, a disbarred lawyer who was a labor negotiator for several law enforcement unions in Nassau and Suffolk counties in New York. Hartman offered to provide labor negotiation services to the TPBA, quoting a fee that amounted to $100 per member and recommending LL&K to Zichettello as new legal counsel. LL&K was the law firm into which Hartman's legal practice merged when he was disbarred. Hartman told Zichettello that LL&K could represent transit police officers who were sued for conduct in the line of duty if and when the NYCTA declined to represent such officers.

When Reale campaigned to be TPBA's President in 1989, he promised to restore the Civil Legal Defense Fund ("CLDF"), a fund that previously existed to pay for the representation of officers sued civilly for work-related conduct. In the contract negotiations immediately preceding Reale's 1989 TPBA campaign, the TPBA sought other benefits in exchange for giving up NYCTA's financial support for a CLDF. The TPBA could safely do so because the NYCTA had apparently never declined to provide representation to officers sued in such circumstances, and the need for a fund to provide such representation was therefore minimal to non-existent.

As a result, the CLDF did not exist during the 1987-1990 contract period, but Reale, who saw a profitable use for it, promised to bring it back if elected. After Reale's election, Zichettello and Hartman signed a contract providing that if the NYCTA reestablished the CLDF, LL&K would receive a fee of $50 per officer annually for legal representation pursuant to the CLDF. Any CLDF amount in excess of $50 per member paid by the NYCTA to the CLDF would be retained by the TPBA. At approximately the same time, Reale authorized and made a $314,000 pre-payment to LL&K for CLDF-related services even though the NYCTA had not yet agreed to restore the CLDF.

In 1990, Lysaght and Kramer assigned an associate at their firm to monitor civil lawsuits against transit police officers for actions in the course of their employment. They did this presumably to create the appearance of valuable services being rendered in return for the $314,000. The monitoring consisted of obtaining documents filed in such lawsuits, filing them, and sending form letters to the officers involved in the cases advising them of the existence and nature of the lawsuit. There was no heavy legal lifting, however, and, from 1990 until November 1991, LL&K never actually represented any transit officer for the CLDF. Nevertheless, restoring the CLDF was a key provision of the contract that Lysaght and Hartman negotiated on behalf of the TPBA with New York City in late 1991 and early 1992. As a result of those negotiations, the TPBA allocated approximately $840,000 of credit to the CLDF, representing payments retroactive to 1987. Reale promised the TPBA membership to use this money as a "reserve" for the future.

Reale advised Montoro and Zichettello about the upcoming receipt of a large sum of money representing the retroactive CLDF payment. Reale and Hartman agreed that $750,000 of that payment was to be paid to LL&K and that Reale, Montoro, and Zichettello would receive $150,000 cash in return. The TPBA received $840,482.42 on March 11, 1992, and, shortly thereafter, Reale, Montoro, and Zichettello met with Kramer and gave him a $750,000 check. Kramer in turn gave them a large envelope stuffed with slightly under $150,000 in cash. Lysaght's and Kramer's bank records corroborated the testimony of Montoro and Zichettello regarding the $150,000 kickback.

Some time later, Hartman presented the TPBA Officers with a back-dated agreement between LL&K and the TPBA to portray the $750,000 payment as a legitimate fee. The new back-dated retainer agreement provided that LL&K would receive $75 per member -- an increase of $25 over the original agreement -- for CLDF services as of July 1990.

In August 1992, Hartman came to the TPBA offices and demanded that Montoro make an immediate payment to LL&K of an additional $150,000 -- money allegedly due under the terms of the back-dated agreement. Montoro issued two checks totaling $150,000 for CLDF-related services. Because the CLDF fund had been reduced to only $70,000, Montoro was forced to take money from the TPBA's general fund to make the payment.

In 1990, at the end of the first year of Reale's presidency, the TPBA retained LL&K for $40,000 annually to replace A&G as legal counsel to a number of health and welfare benefit funds. By February 1991, Hartman was earning approximately $14,000 a month in labor relation and consulting fees from the TPBA. Thereafter, Hartman informed the TPBA that he would no longer perform labor negotiation services and requested that the TPBA retain LL&K to replace him. Reale, Zichettello, and Montoro agreed, and the TPBA began paying LL&K the monthly fees that Hartman had been receiving. Several months later, Reale and Hartman advised Montoro that the labor consulting fees were going to be increased by approximately $3,000 dollars a month. Reale assured Montoro that "there would be something in it for us." Hartman said that the TPBA Officers would personally receive $1,800 each month from LL&K and that Kramer would deliver the money. When Hartman left, Reale and Montoro agreed that the bribe would be split evenly among themselves and Zichettello. Montoro and Kramer subsequently arranged a monthly meeting so that Montoro could give Kramer the monthly retainer check in return for an envelope of cash containing $1,800. This arrangement continued until approximately March 1993.

Sometime in 1992, Reale sought and received bribes from partners at A&G. As part of that effort, Reale decided to award A&G the TPBA's CLDF-related "work." Reale set up a meeting with Hartman and Lysaght to notify them that LL&K was being replaced by A&G. Hartman and Reale met in private and agreed to raise LL&K's monthly retainer for labor relations work from approximately $17,400 to $20,000 and to have the TPBA pay LL&K an additional $200,000 annually, on a quarterly basis, for the law firm's handling of contract negotiations. In exchange, Kramer would deliver $18,000 in cash to the TPBA Officers each time the TPBA made a $50,000 quarterly payment. After Lysaght arrived, he reassured Montoro that they could prevent disclosure of the scheme. Thus, beginning in April 1993, the TPBA issued quarterly $50,000 checks to LL&K for its labor relations work, and Kramer delivered $18,000 in cash to Montoro in return. Montoro split the money with Reale and Zichettello. These quarterly payments continued at least until Montoro retired in 1994.

2) Bribes by Hartman Regarding the Life Insurance Scheme

In addition to acting as a labor negotiator, Hartman also brokered whole life insurance policies issued by the Metropolitan Life Insurance Company ("Metlife"), for which Hartman received a percentage of the premia paid. Before Reale took office in 1989, the TPBA offered only term life insurance to its members. In 1990 and 1991, however, Montoro discussed with insurers the possibility of making whole life insurance available to TPBA members as well. Hartman of course wanted to promote the sale by him of Metlife policies to TPBA members. Hartman and Reale assured Montoro and Zichettello that there would be something in it for them if they agreed to permit Hartman to offer the Metlife policies to TPBA members. In an agreement dated August 2, 1991, the TPBA recognized Hartman as "the agent and broker of record selected by the TPBA" for whole life insurance.

According to Montoro, the TPBA Officers received two bribes from Hartman in connection with this scheme: a $100,000 payment in the fall of 1992 and approximately $17,000 in the spring of 1993. However, Zichettello testified that the TPBA Officers received only one bribe related to the sale of the insurance policies: approximately $6,000 in the spring of 1993. Because of this discrepancy, the government voluntarily withdrew from the jury consideration of the Racketeering Act based upon the $100,000 bribe. Even though Montoro's and Zichettello's accounts as to the amount of the second bribe differed, their testimony as to the delivery of the payment of that second bribe was consistent. Both Zichettello and Montoro recalled that, when Hartman delivered the payment to the TPBA Officers, Hartman apologized for the modest size of the payment and then handed Montoro a white envelope filled with $100 bills. Both Zichettello and Montoro testified that they had expected a higher payoff.

In the spring of 1993, Reale launched a campaign to obtain the Democratic nomination for the newly-created position of Public Advocate of the City of New York. In connection with Reale's campaign, Reale applied to participate in a program administered by the NYCCFB that provided matching funds to candidates for City public offices. To be eligible for the program, a candidate is required, among other things, to raise a threshold of $125,000 in campaign contributions from individuals residing in New York City and to submit periodic disclosures to NYCCFB concerning information about contributions. In exchange, the NYCCFB, using public tax revenues, matches any contribution to a candidate's campaign up to $1,000.

After Reale signed the application to participate in the program, he gave his girlfriend, Marguerite Golino, $3,000 in cash and asked her to obtain three $1,000 contributions from New York City residents. Golino made out one contribution check in her own name and obtained contributions from her mother and her brother's girlfriend. These sham contributions were listed by the Reale Campaign in disclosure statements filed with the NYCCFB and were subsequently matched.

Reale also submitted other sham contributions. For example, in July 1993 he received a $10,000 cash donation. A campaign worker was then sent out to purchase ten $1,000 money orders from various banks. About the same time, another campaign worker and Reale's secretary, Linda Oliva, observed numerous blank $1,000 money orders on a table and overheard discussions about the names that were going to be placed on those orders. Reale was in the room and participated in the conversations. Moreover, his handwriting appeared on at least one of the money orders. When questioned about sham orders by Oliva, Reale responded that it was merely a "bending" of the rules.

For another example, Golino's brother, Angelo, submitted a false invoice from one of his companies to the TPBA, which the TPBA paid by issuing a check. Golino used the proceeds of that check to purchase nine money orders for $1,000 each. Golino and Angelo then got five New York City residents to allow their names to be placed on the money orders. The remaining money orders were sent in blank to Montoro, who gave them to Reale. Three of these four money orders were submitted to the campaign in the name of Reale's relatives. At least two of the money orders, or the documentation submitted with them, bore Reale's handwriting.

Hartman also played a role in misappropriating TPBA funds to pay for the Reale Campaign. Reale told Oliva that Hartman was going to provide contacts for donations and that Hartman thereafter produced some contributions. Actually, Hartman told Montoro to issue a $25,000 check to LL&K that Hartman would convert into campaign contributions from another police organization with which he was affiliated. Montoro did as told and issued a $25,000 check from the TPBA's insurance fund. A few weeks earlier, Montoro had issued a check to LL&K for $35,000. The circumstantial evidence offered by the government strongly supported its theory that Hartman used these funds -- the $25,000 and $35,000 checks -- to generate sham contributions to the Reale Campaign.

After the 1993 election, a federal investigation of the Reale Campaign's funding began. As a result, Reale had his wife prepare a list of all campaign contributions. Montoro showed Hartman the list. In reviewing it, Hartman commented that certain contributions on the list were "mine."C. Reale's Campaign Debts

After losing the primary in the fall of 1993, Reale used TPBA funds to pay off campaign debts. He asked Golino to submit to the TPBA a false invoice for approximately $26,000 from Angelo's car dealership. The invoice was paid and the cash was then used to reimburse Reale's stepbrother for money he contributed to the campaign. Thereafter, Angelo wanted to be reimbursed for his campaign contributions. Because there was no money left in the campaign, Reale authorized Montoro to pay on false invoices submitted by Angelo to the TPBA.

After the federal investigation of the Reale Campaign began, Reale directly contacted numerous purported contributors. In one instance, Reale advised a close friend who was a police officer that the names of the officer and his wife had been used on money orders. Reale asked the officer to lie to federal investigators when questioned about whether the officer had in fact purchased the money order on his own. Thereafter, the officer did initially lie to government agents.

c) Conviction and Sentencing

On January 22, 1998, the district court charged the jury. After deliberating for approximately four days, the jury convicted the appellants on every count and every applicable RICO predicate act set forth in the indictment and in the jury's special verdict sheet. The district court principally sentenced Reale to 84 months' imprisonment, Hartman to 60 months, and Lysaght and Kramer each to 27 months. Richardone was sentenced to 33 months' imprisonment and ordered to pay $38,200 in restitution. All appellants are serving their sentences.

a) The Government's Motion to Amend the Transcript

We turn first to the unusual issue briefly described in the introduction to this opinion -- a very serious and troubling dispute over the content of the jury instructions given by the district court.

Point I of the main brief filed by Hartman, Lysaght, and Kramer was titled "Reversal is Required Because the District Court Amended A Penal Statute and the Indictment." (Reale's brief adopted this argument by reference.) The argument in Point I was based on the transcript of jury instructions received by the parties from the trial court reporter many weeks after the trial concluded in late January 1998. We quote from the pertinent argument verbatim with footnotes:

[T]he principal predicate offense allegation for the RICO conspiracy charges against these defendants is that they bribed, or aided and abetted in the bribery, of a labor official in violation of New York law, a crime which could only become a federal offense by virtue of RICO's definition of certain state offenses, including bribery, as RICO predicates if they are "chargeable under State law and [are] punishable by imprisonment for more than one year." 18 U.S.C. 1961(1)(A). Obviously, outside of the RICO counts in the Indictment, the prosecution did not, and could not, have prosecuted these defendants in federal court for violating New York law.

When the court instructed the jury as to the New York bribery charges, however, it amended the Indictment by characterizing these predicate offenses as including a conspiracy to violate New York Penal Law 180.15. (App. 0616-19). In particular, the court instructed the jury that "In connection with the racketeering acts," these defendants were also charged with:

[A]iding and abetting the commission of those crimes. The aiding and abetting statute, Section 2(a) of Title 18 of the United States Code provides that:Whoever conspires to commit an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission in the conspiracy to commit, is punishable as a principal.5

fn5 As enacted by Congress, the relevant provision of section 2 provides:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

App. 0616 (emphasis added).

This instruction is an inaccurate rendition of the federal aiding and abetting statute, 18 U.S.C. 2(a), and the underlined language concerning conspiracies cannot be found in the statute which Congress enacted. This language was not included in the court's draft charge. Draft Jury Charge, (App. 0531-33). The addition of this language to the federal aiding and abetting statute effectively transformed it into a general conspiracy statute whereby conspiracy, or even aiding and abetting a conspiracy to violate N.Y. Penal Code 180.15, became a predicate RICO offense. This was error.

The balance of the court's charge regarding these state predicate bribery offenses demonstrates that this was not simply a judicial transcription error, but rather an intentional effort to implement the new statute, as amended. The court immediately followed this charge language with repeated instructions to the jury that it could find these defendants guilty if the government only proves that these defendants aided and abetted a conspiracy to violate N.Y. Penal Code 180.15. (App. 0616-20) (Judge's charges).6

Fn6 "A person who aids, abets, counsels or induces another person to conspire or commit an offense is just as guilty of that offense as if he had conspired or committed it himself.

Accordingly, you may find a particular defendant guilty if you find, beyond a reasonable doubt, that the government has proved that another person or persons actually committed the crime, or conspired to commit the crime, and that the defendant aided, abetted, counseled or induced that person or persons in the commission of the offense.

. . . .

As you can see, the first requirement is that another person has committed or conspired to commit the crime charged. . . .

App. 0617 (emphasis added).

The redrafting of federal statutes, however, is not the proper province of the judiciary, and "[f]ederal crimes are defined by Congress, not the courts." United States v. Lanier, 117 S. Ct. 1224, 1226 n.6 (1997) (citing cases).

Under New York law, both by statutory and common law, conspiracies are treated as lesser offenses than aiding and abetting violations. People v. McGee, 19 N.Y.S.2d 48, 424 N.Y.S.2d 157, 399 N.E.2d 1177 (N.Y. 1979), cert. denied, 446 U.S. 942 (1979). A violation of N.Y. Penal Code 180.15 is categorized as a class D felony, but a conspiracy to violate a class D felony is only a misdemeanor. N.Y. Penal Code 105.05. More specifically, a conspiracy to violate N.Y. Penal Code 180.15 is a conspiracy "in the fifth degree" which is a class A misdemeanor punishable by imprisonment which "shall not exceed one year" under N.Y. Penal Code 70.15(1).7

fn7 The same result is reached if the allegation is one of aiding and abetting a conspiracy. Under New York law, an aider and abettor only faces the same potential punishment as a principal. N.Y. Penal Law 20.00. If the principal offense is conspiracy, then one who aids and abets a section 180.15 conspiracy would likewise only commit a Class A misdemeanor.

Because a conspiracy to violate N.Y. Penal Code 180.15 is not a state bribery offense "punishable for more than one year," within the meaning of RICO's definition of permissible state predicate offenses, 18 U.S.C. 1961(1), the jury was improperly instructed that it could convict these defendants based upon criminal conduct which is not a RICO predicate. The defect lies not in the indictment, which limited the predicate allegations to substantive or aiding and abetting New York bribery offenses, but in its expansion through the Court's charge to the jury, which told the jury that it could find defendants guilty based solely upon a finding that they conspired, or even only aided and abetted a conspiracy, to violate N.Y. Penal Law 180.15, both of which are only class A misdemeanors, and therefore are not federal RICO predicates. The jury was further prompted to convict these defendants based upon a misdemeanor conspiracy to violate N.Y. Penal Law 180.15 by the special verdict form (Special Verdict Form, at 9) (App. 0671), which asked the jurors to check any of the listed predicate acts which they found defendants "agreed or conspired with others to commit."

Appellants' Br. At 10-12.

Obviously, this argument had colorable force because the challenged instructions did indeed misquote the federal aiding and abetting statute and in other ways compounded the misquotation by, for example, including language about aiding and abetting a conspiracy.4

The government's brief was filed on March 24, 1999. It did not dispute that the challenged instructions had been given but rather argued that: (i) defense counsel had not objected to the instructions at trial and they were not plain error; (ii) under Salinas v. United States, 118 S. Ct. 469 (1997), a defendant can be convicted of a RICO conspiracy without proof that he or she committed a predicate racketeering act and the instructions were therefore harmless; and (iii) the instructions in question, when read in conjunction with other instructions, were substantially correct or harmless. The government faced an uphill battle on this issue because the instructions did include, inter alia, a sua sponte amendment of a federal statute. Moreover, the case went to the jury on a pre-Salinas legal theory that focused the jury's attention on the alleged predicate acts. It would therefore be difficult to unravel after the fact the erroneous instructions and determine them to be harmless. See infra note 13 and accompanying text.

On April 9, after the government's brief had been filed, the government moved to "correct the record so that it reflects the charge given to the jury and [to] strike Point One [-- the argument concerning the indictment being amended by the district court's aiding and abetting charge --] of appellants' brief." Appellee's Mot. To Correct R. and To Strike. In its motion, the government asserted that when the prosecutors responsible for the trial reviewed Point I of the Hartman, Lysaght, and Kramer brief, "they did not recall that the District Court's aiding and abetting charge included the highlighted and challenged language, which was not in the Draft [Charge] . . . . and all of them believed that they would have noticed such a deviation from the Draft [Charge]." Pomerantz Affirm. 8. However, none of them could say with "absolute certainty" that the district court had not delivered the charge as reflected in the official transcript. Id. Accordingly, and because the government was under "significant time pressure to file a factually complex and lengthy brief," the government decided to submit a brief responding to appellants' Point I on the merits. Id.

Three days after the government's brief was filed, the person who had served as the trial judge's law clerk ("Law Clerk") during the trial -- he had left in September 1998, after two years of service, see Law Clerk Affirm. 2 -- encountered a former Assistant United States Attorney ("AUSA") who had been one of the lead prosecutors in the case. See id. 11; Hirshman Aff. 2. The occasion was a social event at Fordham Law School. See Hirshman Aff. 2. The AUSA and her husband, a Fordham law professor ("Law Professor"), depicted the ensuing conversation as follows. The AUSA told the Law Clerk that she did not remember the district judge giving the instructions described in Point I of the appellants' brief. See id. The Law Clerk said that he also did not remember them. See id. The Law Professor recalled the Law Clerk also saying he had actually returned to the judge's chambers and found that the instructions in the "script" read to the jury by the judge were different from those in the transcript upon which the appellants' brief relied. See Pearce Aff. 3. The Law Clerk recalls the conversation with the AUSA and remembers telling her that he believed that the charge described by appellants was correct on the law. See Law Clerk Affirm. 11. He does not recall mentioning a script or saying that the language in question was not in the script. See id.

This conversation prompted the government to inquire further into the charge issue. Days later, the government communicated with the court reporter, Vincent Bologna, who had transcribed the jury instructions. See Pomerantz Affirm. 10. Bologna told the government that the language challenged by appellants was not, in his view, actually read to the jury. See Bologna 4/99 Aff. 2, 4, 6. Based on this and documents provided by Bologna, the government concluded that there was compelling evidence that the record certified to this court was in error on an issue material to the appeal. See Pomerantz Affirm. 12.

The AUSA contacted the attorneys who represented appellants at trial and asked them whether they remembered hearing the challenged language during the jury charge. The attorneys all stated in substance that they did not remember whether the district court actually uttered the challenged words. See id. 13. The government thereafter contacted appellants' appellate counsel to seek their consent to amend the transcript and strike Point I of the Hartman, Lysaght, and Kramer brief. Understandably, appellate counsel did not consent to the request. See id. 14. Accordingly, the government filed the present motion to amend in this court. We thereafter invited the district judge to submit her version of events in writing. She responded with an affidavit and submitted as well an affidavit of the Law Clerk.

As would likely be the case in any complex trial, various versions of proposed jury instructions exist. In the present case, several such versions of the pertinent instructions are relevant, and we now turn to describing them.

The first relevant version is an eighty-five page draft ("Draft Charge") given by the court to the parties and discussed at a charge conference on January 12, 1998. The Draft Charge contained a standard charge on aiding and abetting taken almost verbatim from Sand's Modern Federal Jury Instructions.⁵ See 1 L. Sand et al., Modern Federal Jury Instructions 11.01, Instr. 11-1 & 11-2. No party objected to it. It of course contained none of the language that is the subject of contention in Point I of the Hartman, Lysaght, and Kramer brief.

On January 22, 1998, ten days after the charge conference and the day on which the charge was given, the district court gave a revised version of the Draft Charge to Bologna. We will style this version the "Final Draft Charge." No copy of this draft was given to the parties. The Final Draft Charge followed the text of the Draft Charge with approximately fifty handwritten changes. The Final Draft Charge did not, however, contain any of the language now claimed as error by appellants. Indeed, the aiding and abetting portion of the Final Draft Charge and the Draft Charge were identical. That portion of the charge was read to the jury just before a late-afternoon lunch break.

While the jury instructions were being given, Bologna prepared stenographic notes "based upon what [he] heard the judge say." Bologna 4/99 Aff. 2. As he did so, the notes were recorded by a stenograph machine onto a paper tape and a computer diskette. We will style the hard copy of this the "Court Reporter's Charge." At the same time, his notes were converted into readable text and immediately transmitted on the district court's and the parties' laptop computers by the "real-time" process. This version cannot be printed and is available only on the court reporter's computer. However, its contents are not in dispute. We will style this version the "Real Time Charge." Neither the Court Reporter's Charge nor the Real Time Charge contain the disputed language except for a single reference to the word "conspiracy" in a paragraph that is in the Court Reporter's Charge and Real Time Charge but in neither the Draft Charge nor the Final Draft Charge.⁶ No lawyer -- for the prosecution or defense -- objected to any