In the United States District Court Southern District of West Virginia Bluefield Division:
See Marino v. Masters, et al., civil action #13-cv-32690(S.D.West Virginia/Bluefield Division).According to the government stipulated to all of Marino‘s Facts and Arguments, but stops short of granting Marino relief.
On September 28, 1998 the government (District of Massachusetts U.S. Attorney’s Office/AUSA: Auerhahn ) moved to dismiss Count 30/Predicate Racketeering Act-B Cocaine conspiracy against Marino, DURING MARINO’S LIVE JURY TRIAL.See Document: 581, via: USA v. Marino, 97-cr-40009-NMG. (D.Mass).On October 22, 1998, the district court (Judge: Nathaniel M. Gorton, D.Mass/Boston) ALLOWED (Document: 581) the government’s Motion to Dismiss Count 30/Act-B cocaine conspiracy against Marino, also during Marino’s LIVE JURY TRIAL.See Document Date: October 22, 1998, in support. Via: USA v. Marino, 97-cr-40009-NMG. (D.Mass).
Thereafter, on December 22, 1999, VERDICT FORM, the government knowingly and or inadvertently placed a dismissed Count 30/Act-B cocaine conspiracy back on the VERDICT FORM (Document: 1079) which the jury marked PROVEN, even-though it was previously dismissed DURING Marino ‘s live jury trial by both the Government (Document: 581) and Court Document Date: Oct. 22, 1998). See USA v. Marino, 97-cr-40009-NMG. (District of Massachusetts). With the correction of the record (December 22, 1999 VERDICT FORM Document: 1079) would preclude Count: 30/Act-B cocaine conspiracy from Count One: RICO and Count Two: RICO conspiracy would essentially invalidate both Count One: RICO and Count Two: RICO conspiracy convictions and sentences of 20 years on Count One and 10 Years on Count Two.
The Jury MARKED PROVEN on ONLY one other predicate racketeering act A-1 Conspiracy to murder in both Counts One: RICO and Count Two: RICO conspiracy. Not enough to convict Marino of Count One: RICO and Count Two: RICO conspiracy, as the government needs TWO OR MORE PREDICATE RACKETEERING ACTS TO CONVICT In Count One: RICO and Count Two: RICO conspiracy. See Statutory Law 18 U.S.C. Section 1961(5) in support.
Memorandum of Law In Support
According to Marino‘s very same case in which the Chief Judge Sandra Lynch out of the United States Court of Appeals For The First Circuit held in United States v. Marino, 277 F.3d 11 (1st Cir.2002); 2002 U.S. App. LEXIS 572; 57 Fed.R.Evid. Serv (Callaghan) 1511, [No. 00-1739 and 00-1813] Decided Jan. 14, 2002:
The Substantive RICO and RICO conspiracy Counts require the defendant to be found guilty OF AT LEAST TWO OR MORE PREDICATE RACKETEERING ACTS TO CONVICT. See 18 U.S.C. Section 1961(5) (277 F.3d 19). The jury found Marino and Patti had committed the predicate acts of conspiracy to (under State Law) to murder 13 individuals, and a conspiracy (violations under Federal Law) to sell illegal drugs in violations of 21 U.S.C. Section 846.
Also see United States v. Hoyle, 122 F.3d 48, 326 U.S. App. LEXIS 23888 No. 95-3157 Decided: Sept. 12, 1997 (Same); USA v. Phillips, 664 F.2d 971, 1011 (5th Cir.1981) (Same); USA v. Gotti, 451 F.3d 133, 136 (2nd Cir.2006) (Same); Werth v. USA, 4th Cir. 2012, 493 Fed. Appx 361; 2012 U.S. App. LEXIS 16190 Aug. 2, 2012. (Same); USA v. Mouzone, 4th Cir., 687 F.3d 207, 2012 U.S. App. LEXIS 15440, Decided: July 26, 2012. (Same).
The elements of a substantive RICO offense under 18 U.S.C. Section 1962(c) are (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity requires two or more predicate acts.