Full opinion text
ORDER WOLF, District Judge. Attached is a memorandum based upon the transcript of the decisions rendered orally on June 16, 1992, regarding the objections to the Presentence Report of the defendant Raymond J. Patriarca. This memorandum adds citations to the law and the evidence; deletes for publication colloquy and other non-essential remarks (with such deletions noted by asterisks); clarifies some language; and adds footnotes amplifying three points made orally. The Court recommends this memorandum as the most accurate and complete statement of the reasons for the decisions rendered on June 16,1992. The transcript of the proceedings on June 16,1992 is also being prepared and may be obtained from the court reporter. The transcript of the proceedings on June 17, 1992 shall constitute the record of the reasons for the denial of the Government’s Motion to Reconsider, filed after the court’s rulings on June 16, 1992. The June 17, 1992 transcript may also be obtained from the court reporter. CONTENTS Summary 167 Factual Context 170 Procedural History 174 The Travel Act Violations 179 The Scope of the Defendant’s Relevant Conduct 185 Departures 196 I. Summary. We are here today pursuant to my order of June 9, 1992, in which I stated that the Court intends to rule orally on the parties’ objections to the defendant Raymond J. Patriarca’s Presentence Report and if the rulings indicate that it is not appropriate for the Court to hear further testimony, to sentence the defendant. afe >jc $ sjc % sjc After a brief preamble, I will alleviate any avoidable suspense and summarize in some detail where all this comes out. However, as I think the number of people in the courtroom reflects the evident public interest in this, I ought to say the following by way of introduction. We are here today for the defendant’s sentencing under the Guidelines promulgated by the United States Sentencing Commission. The use of the word “Guidelines” in this context, however, may be somewhat misleading to the uninitiated. Usually, guidelines give guidance. The Guidelines here are laws that relate to sentencing. They both define and limit the discretion that the court has in imposing sentence in this case. The Guidelines are intended in part to eliminate what was regarded as unwarranted disparity; that is, differences in sentencing that were due to the differences between judges, either in the same courthouse or in different parts of the country, rather than based on meaningful distinctions concerning the offender or the offense. See 28 U.S.C. § 991(b)(1)(B). As this proceeding has indicated, however, the Sentencing Guidelines have not rendered sentencing mechanical. Judges, including me in this case, are called upon to interpret ambiguous provisions of the Guidelines and to resolve factual disputes that are material to the sentence that is to be imposed. As this proceeding also demonstrates, at times that can be a challenging and time-consuming process. However,- once those decisions are reached, the court must impose a sentence authorized by the Guidelines. In addition, as part of an effort to put greater truth in sentencing, when the Sentencing Guidelines came into effect, the possibility of parole for a convicted defendant was eliminated. See 18 U.S.C. §§ 4201-4218, “United States Parole Commission,” repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, Ch. II, § 218(a)(5). Therefore, Patriarca, like other defendants sentenced under the Guidelines, will be required to serve substantially all of the term of imprisonment that I impose on him. Finally by way of introduction, I would say that it should be recognized that the Guidelines that are contained in the United States Sentencing Commission Guidelines Manual establish a system which includes 43 Offense Levels that go up and down on a grid and six Criminal History Categories that go horizontally on that grid. However, while that looks like a mathematical grid, it ends up setting a range of reasonable sentences that can be imposed under the Guidelines as calculated. In other words, there is no one sentence which the Sentencing Commission established as precisely correct. Now, with regard to the summary of the many rulings I will explain in detail, in the Presentence Report, the Probation Department analyzed the facts and the applicable laws as it then understood them and calculated the defendant’s Guidelines to be an Offense Level 26, Criminal History Category I, providing for a sentence of 63 to 78 months. The government and the defendant each had a number of objections to these calculations. I have resolved all of the objections. I find that the proper calculation of the defendant’s Guidelines place him in an Offense Level 27, with a Criminal History Category of II, and that the permissible range for his sentence is 78 to 97 months. At the end of this proceeding, the parties will have an opportunity to argue where within that range Patriarca’s sentence should fall. Basically, the decisions I have made which result in this calculation are as follows. There are three disputes relating to three Travel Act counts concerning Patriarca. Count 31 involves the August 1985 travel concerning Robert Carrozza’s desire to replace Henry Tameleo as the person Frank Mantia would be required to pay with regard to certain loansharking debts. I find that the Offense Level for Count 31 is properly placed at Level 20 because the travel related to extortion. Carrozza’s possible intention to use money from Mantia to buy drugs is not relevant conduct attributable to the defendant, as the government now contends, because such narcotics activity was neither within the scope of the Count 31 Travel Act conspiracy between the defendant and Carroz-za, nor a reasonably foreseeable consequence of it. The government has failed to prove by a preponderance of the evidence that Carrozza’s narcotics activity, or alleged narcotics activity, constitutes relevant conduct attributable to Patriarca. Thus, with regard to Count 31, the rating is not a Level 30 as the government has recently contended, or a Level 6 as the defendant has claimed, before adjustment for role in the offense, which adds four points. It is Level 20, as the Probation Department originally calculated it. With regard to Count 36, the August 1989 travel from Rhode Island to Connecticut, I find that travel was in furtherance of extortion, not simply travel regarding structure as the defendant now contends. Thus, that Count should also be rated as a Level 20, rather than a Level 6 as the defendant asserts. Count 39 pertains to the October 29,1989 Travel Act violation relating to the Mafia induction ceremony held on Guild Street in Medford, Massachusetts. The Probation Department has recommended that this violation be rated as a Level 6 because it perceives the travel to be in service of the structure of the racketeering enterprise. The government asserts that the Count 39 travel should be rated as a Level 20 because it was travel in furtherance of extortion. I find that the travel should be rated at a minimum as a Level 12 as travel in service of gambling, or as a Level 20 as travel in service of extortion. However, none of those distinctions matter because even if it is rated as a Level 12, it adds one Offense Level to the defendant’s total Offense Level computation, therefore raising him to Level 27. Basically, the facts in brief summary are that the ceremony held on October 29, 1989, was intended to induct new members of the Patriarca Family in Boston, and that this was intended to enhance the ability of the Family to engage in its criminal business. The evidence demonstrates that the heart of that criminal business of the Pat-riarca Family was illegal gambling and loansharking, a form of extortion. Indeed, as was foreseeable, loansharking was discussed by several people at the induction ceremony, although not in the defendant’s presence. Thus, the Offense Level, as I said, is at least a Level 12. Anything ranging from Level 12 to Level 20 adds one Offense Level to the calculation previously done by the Probation Department. So the defendant’s total Offense Level is 27. With regard to the matter which has consumed the greatest attention since the defendant pled guilty in December, 1991, the government argues that seven acts that the defendant was not charged with, including the murder of Vincent James Li-moli and the murder of Ted Berns by Salvatore Michael Caruana, constitute relevant conduct, under § 1B1.3 of the Guidelines, regarding the defendant’s counts of conviction for violations of 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act, (“RICO”). The government has not contended that these acts are relevant conduct with regard to the counts of conviction involving Travel Act violations, Counts 30, 31, 36, 38 and 39. I find that the government’s position regarding relevant conduct concerning the RICO charges is incorrect as a matter of law. As I will describe in considerable detail later, the applicable Guidelines are somewhat ambiguous. I find, however, that when they are properly read, they express the intention that when RICO is involved, a defendant’s Base Offense Level should be computed on the basis of the underlying racketeering activities with which he was charged in the indictment and any relevant conduct relating to those underlying charges. The Guidelines may then be adjusted upward for a defendant’s role in the offense. Here the Base Offense Level for the RICO charges is the. Base Offense Level for the defendant’s Travel Act predicate acts and the substantive counts with which he was charged, plus a four-level increase for his role as the Boss of the Patriarca Family. As a matter of law, the other events the government relies on are not relevant conduct for the purposes of computing the defendant’s Base Offense Level in this case. So, prior to consideration of departures, the Base Offense Level for the defendant is 27. With regard to departures, contrary to the government’s contention, no upward departure is warranted under § 5K2.0, the general departure provision of the Guidelines. This case does not involve aggravating circumstances which are of a kind, or which exist to a degree, not adequately considered by the Sentencing Commission in promulgating the RICO Guideline. As the Sentencing Commission knew, RICO was primarily intended to provide a means to prosecute members of the Mafia. The fact that the defendant was the Boss of a Mafia Family was also adequately considered and addressed in the Guidelines, which provide a four level increase for his role in the offense. See U.S.S.G. § 4A1.3(a). In addition, even if membership in the Mafia or a defendant’s role as a Mafia Boss were not adequately considered by the Sentencing Commission generally, the proven facts in this case do not establish that an upward departure for Patriarca is warranted. With regard to § 5K2.0, there are no proven facts or circumstances regarding the defendant which are so rare or extreme that an increase in his Offense Level under § 5K2.0 is appropriate. A one-level increase in the defendant’s Criminal History Category, however, is appropriate under § 4A1.3 because the government has proven in one respect that the defendant’s Criminal History Category does not adequately reflect the seriousness of his past criminal conduct. I do not find, however, that a departure is warranted under the second prong of § 4A1.3, which addresses whether the defendant’s criminal history adequately reflects the likelihood that he will commit crimes in the future. Under the Guidelines, § 4A1.3 departures based on criminal history are to be structured as if the defendant had been convicted and punished for additional, otherwise uncounted crimes that the government has proven at sentencing. In this case, although it is a close question, I find that the government has proven by a preponderance of the evidence that the defendant aided and abetted drug crimes committed by Salvatore Michael Caruana. For present purposes, I also assume, without finding, that the defendant also helped harbor Caruana when he became a fugitive from the federal drug charges against him. If the defendant had been convicted and sentenced to 13 or more months in prison for these two related crimes, his Criminal History Category would be II. I also find that the government has not proven by a preponderance of the evidence that the defendant conspired to commit, or aided and abetted the commission of, any other crimes it argues justify an upward departure. As I will later describe in detail, the government has not proved the defendant’s complicity in the murder of Vincent James Limoli or Ted Berns, or any other specified crimes. Thus, I find that the defendant’s proper Criminal History Category is II. The defendant’s Guidelines, then, are a total Offense Level of 27 and a Criminal History Category of II. Based on those findings and the calculations which the Probation Department and I have done, the range of sentence that I may impose is 78 to 97 months in prison, two to three years of supervised release, a fine of $12,500 to $125,000, plus the costs of confinement and supervision. Depending on where I decide to impose sentence within the 78 to 97 month range, the cost of confinement is between $98,000 and $122,000. The cost of supervision is in the range of $4,000. There is also a mandatory $350 special assessment. II. Factual Context. It is important to view this sentencing in the context of the factual history that led to the defendant’s indictment and the history of related cases. I have been compelled to do that by the nature of the case and, particularly, by the nature of the arguments made by the government concerning the sentence that ought to be imposed. I think, however, it is also useful to public understanding, and potentially helpful to anybody who may review my decisions, to describe some of the key aspects of the factual history leading to the defendant’s indictment and the procedural history of this and related eases. Essentially, I continue to view many of the material facts as I described them in my June, 1991 bail decision concerning Patriarca. See United States v. Patriarca, 776 F.Supp. 593, 600-05 (D.Mass.1991). The defendant is Raymond J. Patriarca, who is also sometimes known as “Junior.” The defendant is now 47 years old. He suffers from recurring bladder cancer, which has been controlled so far by periodic examinations and removal of recurrent tumors. Since his incarceration, the defendant’s cancer is recurring more frequently. The most recent letter from his doctor, James E. Ellis, indicates that his cancer has recurred since his incarceration in March, 1990, in May, 1990, in December, 1990, in April, 1991, and in February, 1992. See Letter from James E. Ellis, M.D., dated May 3, 1991, made part of the Presentence Report. I understand tumors were removed at those times. Id. The defendant is the only son of Raymond L.S. Patriarca, who was for many years the powerful Boss of the New England organized crime Family which still bears his name. Raymond L.S. Patriarca brought his son into the “family business.” Initially, the defendant Raymond J. Patriar-ca’s role in the Family was to assist his father. The evidence indicates that he served as a messenger to other organized crime members and associates of the Pat-riarca Family on behalf of his father. As I will describe in detail later, with his father, the defendant dealt with Salvatore Michael Caruana, a major marijuana trafficker. The evidence also indicates that the defendant was ambivalent about his role in La Cosa Nostra (the “LCN”). In 1981, Raymond L.S. Patriarca was very ill. He was not able to deal directly with the LCN members in Boston. The electronic surveillance conducted by the Federal Bureau of Investigations (the “FBI”) indicates that some members of the LCN in Boston were attempting to communicate with Raymond L.S. Patriarca through his son. Raymond J. Patriarca, however, requested and received from his father permission to bow out of this role. The tape recorded conversations indicate that he said he could not stand being his father’s agent in dealing with the LCN in Boston. More specifically he said about the LCN in Boston: “these guys are really bothering me. I can’t keep after them.” See April 6, 1990 Affidavit of Supervisory Special Agent James A. Ring In Support of Pretrial Detention of Raymond J. Patriarca, Carmen A. Tortora and Pasquale Barone (under seal), (“Ring Aff.”), 1110. The evidence in this case indicates that the defendant’s ambivalence about following his father in the Mafia was not unique. Philip Leonetti, the former Underboss of the LCN Family in Philadelphia, testified that the son of the Philadelphia Boss, Nicky Scarfo, committed suicide because of the pressure to follow in his father footsteps. See Testimony of Philip Leonetti, (“Leonetti Test.”), May 18, 1992. However, the defendant Raymond J. Patriarca did not reject the potential for power and profit his father’s position offered him. As a result, the defendant, for at least the last 15 years, has been extensively investigated by the federal government, which has long sought the conviction of the key members of the Patriarca Family- The evidence presented to me showed that in the 1980’s, the defendant continued criminal activities on behalf of the Patriar-ca Family and was also legitimately involved in the construction business, personally and substantially participating in the development of the Kendall Estates in Rhode Island. Nevertheless, in 1983, his involvement with Salvatore Michael Carua-na was such that other members of the LCN expected that the defendant would be indicted on drug charges with Caruana, See Exhibit 20, Transcript of Recorded Conversation, (“Tr.”), August 25, 1983, p. 1. Caruana was indicted. See United States v. Salvatore Michael Caruana, et al., D.Mass., Cr. No. 83-309-Z. The defendant was not. In July, 1984, Raymond L.S. Patriarca died. The FBI’s electronic surveillance, among other things, demonstrates that the defendant would not have been selected as Boss if the LCN were run as a democratic organization. See Exhibit 14, Tr., August 31, 1983, p. 2-3. Many of the members of the Family would have preferred a leader who had earned his position. In one conversation a preference was expressed for Ilario Zannino of Boston. See Exhibit 13, Tr., August 24, 1983, p. 1. In addition, there is evidence that many members of the Family hoped and expected that Nicholas Bianco, who had long ties to the New York LCN Families as well as to the Patriarca Family, would succeed Raymond L.S. Patriarca. See United States v. Patriarca, 776 F.Supp. at 601, n. 43. However, Raymond L.S. Patriarca arranged for his son to succeed him. I find that the defendant became Boss of the Patriarca Family as a result of nepotism rather than merit. This is a view that has been shared by various law enforcement officials, including former Rhode Island State Police organized crime investigator, Vincent Vespia. Vespia has been publicly quoted as saying: “Junior did not have the brains to lead the family. If his father had not come before him, he wouldn’t have gotten the job. He couldn’t lead a Brownie troop.” Id. at 601, n. 46. By the mid-1980’s the government had successfully prosecuted substantially all the known hierarchy of the LCN in Boston, including Gennaro Angiulo and Ilario Zan-nino, and many others. See United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990); United States v. Zannino, 895 F.2d 1 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990); United States v. Angiulo, 847 F.2d 956 (1st Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 138, 102 L.Ed.2d 110 (1988). The death of Raymond L.S. Patriarca and, particularly, the government’s successful investigations dramatically disrupted the operations of the Patriarca Family. There was considerable chaos and competition for power within the Family in Boston. The defendant, however, did little to try to assert power or maintain control of the Patriarca Family, particularly in Boston. Essentially, the defendant was unwilling or unable to labor to retain and truly possess what he had inherited from his father. There was electronic surveillance in the car the defendant used on February 14, 1986, which was very revealing regarding the defendant’s state of mind at that time. See Exhibits 11A, 11B, Tr., February 14, 1986. The FBI had planted a bug in the car that the defendant used. I have listened to the tapes as well as read the transcripts concerning those bugs. I am convinced that the defendant did not know that he was being overheard in those discussions. The discussions intercepted by the government in that car reveal a man who was at that time sick and tired. The defendant states in those conversations that because of law enforcement pressure and his cancer, which had recurred, he earnestly wanted to sell his house and leave New England to live peacefully in Florida. See Exhibit 11A, supra, pp. 1-3. More specifically, the defendant said to his driver that he wanted to sell his house and move to Florida. He explained passionately how tired he was of being followed and having his name in the newspapers all the time. Indeed, his lawyers wanted him to sue the government for misconduct in investigating him and improperly disclosing information it had obtained. The defendant refused. He said: “I am dropping all lawsuits. I ain’t going to sue my country. It’s like being a Communist, or something. We’ve got enough troubles in this country without me causing more for them.” See Exhibit 11B, supra, p. 1. The defendant also expressed the concern that his notorious name might prevent his son from being admitted to West Point. Id. He was also very worried about his cancer. He explained how it had recurred. He was bleeding and was facing surgery. He said he might kill himself before he would let them “cut him.” See Exhibit 11A, supra, p. 2. With regard to his lawyers, the Mafia and the government, he said: “I don’t want to bother with no one, talk to no one or see no one.” Id. at 3. However, while the defendant may have been sick and tired, he was also weak. He did not leave New England and he did not leave the Mafia. Nor did he exert control of the Patriarca Family activities in Massachusetts. The evidence indicates that after Raymond L.S. Patriarca died and the Angiulos and others were convicted in Boston, the Boston members attempted to reorganize, but they did not keep the defendant fully informed of their activities. Nor did they share their often meager profits with the defendant. With regard to the meagerness of some of the income generated by the efforts of the Patriarca Family members, I find evidence concerning Antonio Spagnolo, who is also known as “Spucky,” in a related case before me to be instructive. See United States v. DiGiacomo, 746 F.Supp. 1176, 1183-84 (D.Mass.1990). Spagnolo was a soldier in the DiGiacomo regime of the Patriarca Family. That regime was penetrated as a result of an impressive undercover operation conducted by FBI Special Agent Vincent delaMontaigne. Spagnolo was tape recorded complaining to delaMontaigne that business was bad because “things were tough in the Mafia.” Id. at 1184. Indeed, Spagnolo was unable to raise $35,000 for a marijuana deal. In addition, he and delaMontaigne, as part of this undercover operation, ran an illegal poker game. When Spagnolo’s share of the profits after several months amounted to only $30, he stuffed the money in his mouth and threatened to return to making money the “old way,” as he called it, by “pulling kids out of sneakers and stealing their money.” Id. The evidence also indicates that the Pat-riarca Family members in Boston did not share the proceeds of their more successful crimes with the defendant. I have considered considerable evidence relating to the extortion at Vanessa’s Food Shop of the bookmakers Sagansky and Weinstein by Vincent Ferrara, Dennis Lepore, Angelo Mercurio, and others. The evidence includes electronic surveillance of the extortion and of the division of the $250,000 proceeds of that crime. That electronic surveillance recorded shares being discussed for Joseph Russo and Robert Car-rozza, who were not present. See Exhibit 12, Tr., January 15, 1987, pp. 1-22; see also Patriarca, 776 F.Supp. at 602. There is no discussion of money going immediately or eventually to the defendant. Rather, the participants discussed keeping this extortion secret. Considering that evidence in the context of all the other evidence concerning the Vanessa’s extortion, I find that the government has not proven by a preponderance of the evidence that any of the members of the Patriarca Family intended to give the defendant any money from the Vanessa’s extortion, either immediately or eventually. As the government’s Trial Brief accurately describes: “in the spring and summer of 1989, the Family was deeply divided between members, including Russo, Fer-rara and Carrozza in Boston, who sought removal of Patriarca as Boss, and members who remained loyal to Patriarca.” Trial Brief of United States, filed October 16, 1991, p. 216; see also Presentence Report, ¶11 57-61, pp. 24-25. As part of an effort to try to persuade Patriarca to abdicate his power and position, the Boston faction caused the Underboss, Billy Grasso, to be shot and killed in Connecticut. On the same day, as part of the same effort, they caused Patriarca ally Frank Salemme to be shot in Massachusetts. Salemme survived. See Trial Brief of the United States, pp. 216-17. The government knew that the defendant was threatened, and took that threat seriously. The FBI warned the defendant that his life was in danger. See Patriarca, 776 F.Supp. at 602. That warning was warranted. The defendant was in danger. Joseph Russo threatened personally to kill the defendant if he did not abdicate his position and cede his power to Russo. With tears in his eyes, the defendant begged for his safety and for the safety of his relatives. Id. Nevertheless, the defendant could not quite let go of his position in the LCN. He did, however, delegate substantial power concerning the operation of the Family in Massachusetts to Joseph Russo, and agreed to the induction of new members of the Patriarca Family proposed by the Boston faction. This resulted in the October 29, 1989 Mafia induction ceremony, which was electronically surveilled by the FBI and is described in detail in my decision ruling that the tape recording and related evidence would be admissible at the defendant’s trial. See United States v. Ferrara, 771 F.Supp. 1266 (D.Mass.1991). In November, 1989, Joseph Russo, Vincent Ferrara, and Robert Carrozza were indicted for their part in the RICO enterprise known as the Patriarca Family. The case was assigned to United States District Judge A. David Mazzone. In March 1990, a superseding indictment in that case was returned. It revealed the electronic surveillance of the induction ceremony and added a number of defendants, including Raymond J. Patriarca, who was charged with RICO conspiracy, a substantive RICO violation, a Travel Act conspiracy, and discrete Travel Act violations. Thus, at that time the defendant was joined by the government as a defendant with Joseph Russo, who had threatened to kill him, and Russo’s allies in Boston. At the same time, related indictments were returned against Biagio DiGiacomo and members of his regime of the Patriarca Family, Antonio Spagnolo and Vincent Giocchini. See United, States v. DiGiacomo, 746 F.Supp. 1176 (D.Mass.1990). DiGiaco-mo was a Capo in the Patriarca Family. He personally conducted the Mafia induction ceremony on October 29, 1989. The charges in the DiGiacomo case involved alleged RICO violations and related charges concerning drug trafficking, loansharking, gambling and obstruction of justice. Id. That case was assigned to me. Also at the same time, Nicholas Bianco and other members of the Patriarca Family were indicted in Connecticut on RICO and other charges, along with certain associates of the Patriarca Family. See United States v. Nicholas L. Bianco, et al., Cr. No. H-90-18 (D.Conn.1991). Some of the defendants in that case were indicted on charges relating to the murder of Billy Grasso. Some of the defendants in the Bianco case were also charged with the murder of Ted Berns. Raymond J. Patriar-ca was not charged with anything, including either murder, in the Connecticut case. III. Procedural History. With regard to the relevant procedural history of these related cases, in the DiGiacomo case the three defendants were released on bail subject to electronic monitoring and other stringent conditions. See DiGiacomo, 746 F.Supp. at 1189-99. Subsequently, the defendants and the government entered into binding plea agreements. See Fed.R.Crim.P. 11(e)(1)(C). The government agreed that the defendants could plead> guilty to being part of a RICO enterprise which committed the acts alleged in the indictment, while expressly refusing to admit the existence of the LCN, the Patriarca Family, or their membership in both organizations. The defendants and the government agreed to what they and the government represented to the Court were sentences within the Guidelines. The Guidelines were calculated differently for each of the three defendants. The Guidelines, as calculated by the government, the defendants, and the Probation Department, were based solely on the conduct of each defendant as charged in the indictment. There were no claims that uncharged acts constituted relevant conduct of any of the defendants. For example, Spagnolo was a key person in the dispute which led to the Limoli homicide, which the government in this case contends occurred as part of the Patriarca Family RICO conspiracy and was a reasonably foreseeable consequence of it. Id. at 1187. The government did not then, however, assert that the Limoli homicide constituted relevant conduct attributable to Spagnolo. Neither the binding plea agreement, nor the sentence imposed on Spagnolo pursuant to it, included punishment for the Limoli homicide. I accepted and imposed the agreed-upon sentences for DiGiacomo, Spagnolo, and Gi-occhini. As the government had agreed and recommended, I also authorized the defendants to self-report to prison. The three of them are now serving their sentences. With regard to the Bianco case, many of the defendants were released pending trial, including Bianco. At that time, Bianco had become the Boss of the Patriarca Family. Raymond J. Patriarca had been demoted from Boss to Soldier, evidently in part because of the LCN’s displeasure with his inept leadership which resulted in the interception of the LCN’s secret, sacred induction ceremony. See Patriarca, 776 F.Supp. at 603. The Bianco case proceeded in the United States District Court in Connecticut. Some of the defendants pled guilty. Some, including John Castagna and Jack Johns, cooperated and testified for the government. The remaining defendants were convicted. At his sentencing, Bianco was subjected to an upward departure and sentenced to serve eleven years and five months in prison. See United States v. Nicholas L. Bianco, Cr. No. H-90-18, (D.Conn.1991), Tr., November 25, 1991. United States District Judge Alan H. Nevas explained at sentencing that this upward departure was warranted in part because Bianco’s uncounted criminal history under the Guidelines included his 1963 conviction for violent conduct in the so-called “Profaci” LCN wars in New York. Id. at 15. It was also based in part on the fact that Bianco had no legitimate employment history. Id. at 30. In addition, the upward departure was based in part on the fact that Bianco had recently succeeded Raymond J. Patriarca as Boss of the Patriarca Family, and thus evidently rededicated himself to the criminal enterprise. Id. at 7-8; 29. With regard to this case, following his indictment, the defendant promptly expressed an interest in pleading guilty. At the defendant’s request, Judge Mazzone asked the Probation Department to calculate preliminarily the Guidelines for the defendant. See Fed.R.Crim.P. 32(c)(1). Relying on the charges against the defendant in the Superseding Indictment, the Probation Department informed the parties and the Court of its preliminarily view that the Guidelines were Offense Level 26 and Criminal History Category I, which in pertinent part provided for a term of incarceration of between 63 and 78 months. Evidently, the government was not willing to agree to a sentence in this range and the defendant would not agree to a higher sentence. In November 1990, Judge Maz-zone accepted a second full-time job as a member of the United States Sentencing Commission. He kept almost all of his pending cases and has continued to take new cases, rendering a great service to the District of Massachusetts. However, this particular case, which required intensive, continuous pre-trial attention and promised to involve a long trial, was randomly assigned to me. When I received the case in November 1990, I was informed that the defendant was interested in pleading guilty. I was also informed by the government that if that occurred, the government would seek an upward departure under § 5K2.0 of the Sentencing Guidelines. The government at that time did not claim that the defendant’s Base Offense Level should be increased because of uncharged relevant conduct. See Tr., November 19, 1991, p. 8. The defendant indicated to the Court an inclination to plead guilty without a plea agreement as long as he was not required to say anything acknowledging the existence of the LCN or the Patriarca Family, or his role in those organizations. As indicated earlier, the government had agreed in the DiGiacomo case that this was legally permissible and appropriate. The government, however, with regard to this defendant questioned the propriety of the Court taking a plea on that basis. I researched the issue and received memoran-da from the parties. See e.g. Letter from Attorney Martin G. Weinberg re: Fed. R.Crim.P. 11, dated January 11, 1991; Memorandum of the United States Concerning the Effect on Sentencing of the Defendant’s Refusal to Admit to Sufficient Facts to Support a Plea of Guilty, filed on January 18, 1991; Government’s Memorandum of Law Concerning Rule 11(f) of the Federal Rules of Criminal Procedure, filed on January 9, 1991. In addition, I conferred with counsel on the record in January and February of . 1991, primarily to discuss whether it was permissible for the defendant to be silent with regard to the factual basis for his plea which the Court would have to find under Federal Rule of Criminal Procedure 11(f). I was satisfied that I could rely only on the government’s statement and other evidence, and that the defendant would not have to confirm the factual basis for his plea of guilty. See, e.g., North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162 (1970); McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969); Irizarry v. United States, 508 F.2d 960, 967 (2nd Cir.1974); United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970), cert. denied, 401 U.S. 958, 91 S.Ct. 986, 28 L.Ed.2d 242 (1971); United States v. Alvarez-Quiroga, 901 F.2d 1433, 1438 (7th Cir.), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990). I so informed the parties. The government asserted that it would seek an upward departure under § 5K2.0 and § 4A1.3 if the defendant pled guilty. Once again, the government did not then mention its present claim that uncharged acts constitute relevant conduct raising the Base Offense Level of the defendant thereby obviating the need for any departure. See Tr., January 7, 1991, p. 39. It is appropriate and perhaps important to note that the foregoing discussions occurred in the context of the Court attempting to predict the parameters of a possible sentencing hearing, an issue relevant to the exercise of the Court’s discretion whether to accept the plea without the defendant confirming the factual basis for it. The discussions did not occur in the context of the Court participating in negotiations concerning a possible plea agreement. Id.; see also Fed.R.Crim.P. 11(e)(1). The parties’ discussions concerning a possible plea agreement had terminated. The defendant did not promptly plead guilty. The Court was informed that he wished to seek release on bail. The standard for the defendant obtaining his release is much higher after a guilty plea than it is when he is still presumptively innocent. Prior to a guilty plea, the government must prove that no combination of conditions will reasonably assure the defendant’s appearance or the safety of the community. See 18 U.S.C. § 3142(f); compare 18 U.S.C. §§ 3143(a) and 3145(c). After a series of hearings, on June 19, 1991, the Court found that there were a combination of conditions on which it would be appropriate to release the defendant. See Patriarca, 776 F.Supp. at 595-97. Included among those conditions was electronic monitoring similar to that utilized in the DiGiacomo case. See DiGiacomo, 746 F.Supp. at 1189-90. In addition, one condition of release required that Patriarca’s relatives pledge about four million dollars in property, which would be subject to forfeiture if he violated any condition of his release. The order included not only the usual forfeiture provisions for failure of the defendant to appear as required in court, but also included the possibility of forfeiture if the defendant committed any crime or communicated with anyone without authorization of the Court, a condition which would have precluded communication with members of the LCN. See Patriarca, 776 F.Supp. at 607. However, I stayed the decision to release the defendant pending a possible appeal. The government did appeal. On October 28, 1991, the Court of Appeals affirmed most of my findings, but remanded the matter for determination of what percentage of the defendant’s assets the four million dollars represented. See United States v. Patriarca, 948 F.2d 789, 794-95 (1st Cir.1991). This is an issue that I had not pursued because I was relying on the defendant’s desire not to cause many of his relatives to lose their money, homes and other property, rather than on the percentage of the defendant’s personal assets that four million dollars represented. See Patriarca, 776 F.Supp. at 605, 616; see also United States v. O’Brien, 895 F.2d 810, 816 (1st Cir.1990). My order with regard to the four million dollars was intended to be a provision for forfeiture by sureties under 18 U.S.C. § 3142(c)(1)(B)(xii), not a provision for forfeiture by the defendant under 18 U.S.C. § 3142(c)(1)(B)(xi). Pat-riarca, 776 F.Supp. at 605. It is evident, however, that I did not make this sufficiently clear. The Court offered the defendant an opportunity to produce the financial information contemplated by the remand and the opportunity to litigate issues which might be raised by the government relating to his net worth and his release. The defendant was not willing to produce the information necessary for the net worth analysis contemplated by the Court of Appeals. Rather, the defendant asked me to continue to rely on the sentimental value of his relatives’ homes and to authorize his release. As these matters were being discussed in November, 1991, the defendant’s trial was scheduled for early January, 1992. In November, 1991, the defendant informed the government and the Court that he would plead guilty without an agreement with the government and later ask the Court to decide the detention issues, recognizing that it would then be more difficult for him to obtain his release by virtue of the change of plea. See 18 U.S.C. §§ 3143(a) and 3145(c) (defendant who pleads guilty must be detained unless court finds by clear and convincing evidence that defendant does not pose risk of flight or danger to the community and that exceptional circumstances exist justifying release). The change of plea was scheduled for December 3, 1991. On December 2, 1991,1 met with counsel to discuss matters relating to that plea. Defendant’s counsel indicated that the defendant would be silent with regard to the factual basis for a plea. I again indicated that this was legally permissible. See Tr., December 2, 1991, p. 4. In addition, I discussed with the parties factual disputes that might have to be addressed at sentencing. I remained interested in ascertaining the parameters of any sentencing hearing. Id. at 17. Speaking colloquially, I also said that I did not want either party or the Court to be “sandbagged” when we got to the sentencing. Id. at 20. Counsel for the government and defendant indicated that there would be a dispute concerning whether the Travel Act violations in Counts 31 and 36 were in furtherance of extortion or some other criminal purpose with a lower Guidelines rating. Id. at 24-25; 32. The Court agreed that it was appropriate to accept the plea without resolving these issues because the disputed facts were not relevant to guilt, but only to the calculation of the Guidelines range. Id. at 22-23. The government stated it would seek an upward departure for matters like the Li-moli homicide charged in the indictment for which there was no specific evidence linking the defendant directly to the crime. Id. at 17. The government also told the Court that it would rely on the fact that the defendant was the head of an LCN Family to justify an upward departure. Id. at 13. In addition, the government said it would seek to have the defendant’s Base Offense Level increased on the basis of relevant conduct for matters like Caruana’s drug distribution for which the government felt it had proof of the defendant’s direct involvement. Id. at 12-13. With this background, we proceeded to the defendant’s change of plea on December 3, 1991. The defendant changed his plea to guilty on all counts of the Superseding Indictment against him. The defendant was advised of his right to dispute how the Travel Act violations in Counts 31 and 36 should be rated. See Tr., December 3, 1991, pp. 15, 45. The government did not at that time claim that Count 39, concerning the induction ceremony, should be given more than a Level 6 rating; it now says that it should be a Level 20. The defendant in his change of plea confirmed that he understood that it was not then possible to know with certainty how the Guidelines would be calculated by the Court at sentencing. Id. at 23. The defendant understood that he could not withdraw his plea if the Guidelines calculations or his sentence were higher than he had hoped. Id. 24-5. As indicated earlier, the defendant was expected to be silent concerning the factual basis for his plea. After pleading guilty to the RICO charges, however, he gratuitously added: “I am not admitting my membership in the Mafia.” Id. at 35. The government then objected to the Court accepting the plea. Id. at 36. I, however, asked the defendant the questions required to take an Alford plea in the event that it were perceived by someone, although it was not perceived by me, that the defendant was tendering an Alford plea. See Alford, supra. After receiving his responses, as in the DiGiacomo case, I decided that the defendant’s refusal to admit membership in the Mafia did not render his plea unacceptable. See Tr., December 3, 1991, pp. 80-85. He was willing to admit to being part of an enterprise substantially similar to the one alleged in the indictment, among other things. Id. Thus, I accepted the defendant’s plea. However, as with his co-defendants, the defendant has not received a two level reduction for acceptance of responsibility in the Guidelines calculations, notwithstanding his plea of guilty, in part because of his express refusal to admit his membership in the Mafia. See U.S.S.G. § 3E1.1. On December 13,1991,1 had a hearing to review again the defendant’s detention. I denied his release. As I explained at that time, I found that the defendant had pled guilty to a crime of violence — a Travel Act violation in aid of extortion. See 18 U.S.C. § 3156(a)(4). Under the circumstances, the defendant had the burden of proof. He had to prove by clear and convincing evidence he would not flee, or pose a danger to the community, and that there were exceptional circumstances warranting his release. See 18 U.S.C. §§ 3143(a); 3145(c). The defendant did not satisfy this burden. Thus, his detention was continued. On January 6, 1992, jury selection in this case began with regard to five of Patriar-ca’s co-defendants. After nine days of jury selection, arduous plea negotiations resulted in five binding plea agreements pursuant to Fed.R.Crim.P. 11(e)(1)(C). See United States v. Robert Carrozza, et al., Memorandum & Order, (“Carrozza Order”), May 7, 1992, pp. 2-4, 1992 WL 137112. All defendants except Joseph Russo agreed to be silent with regard to the factual basis for their pleas. Id. at 3, n. 2. Russo agreed with the government to serve an extra year in prison in return for the government not objecting to his making very limited remarks indicating that by pleading guilty he was not acknowledging the existence of the LCN or his membership in it. Id. The plea agreements included Guidelines calculations done by the government and the defendant based solely on the charges in the Superseding Indictment against each defendant. There was no claim that the Guidelines for any defendant should be increased for any alleged relevant conduct. For example, although Carrozza was directly involved with Spagnolo in the dispute that led to the Limoli murder, the government did not claim that the Limoli murder constituted relevant conduct for the purpose of calculating Carrozza’s Guidelines. The government also did not assert that any upward departures were appropriate. Instead, the government agreed to downward departures from life sentences for Vincent Ferrara and Joseph Russo. Id. at 6-7. After briefing and hearing, I found the plea agreements to be reasonable and imposed the sentences that the parties had agreed upon. Id. at 13-22. With regard to Patriarca’s sentencing, after the defendant pled guilty, the government asserted that there were seven crimes, including the Limoli murder, which constituted relevant conduct attributable to the defendant and substantially increasing his Offense Level, thus eliminating the need for any departure. The scope of the relevant conduct included in the Base Offense Level in a RICO case is an unprecedented issue, at least in the reported cases. It is also an issue with significant consequences for the defendant in this case. The issue has the potential to raise the sentence in this case from the seven year range that the Probation Department originally calculated, to a life sentence, as I see it, or a 30 year sentence as the government calculates it. The defendant responded that the government’s position regarding relevant conduct is incorrect as a matter of law. The defendant also asserted that the government could not prove as a matter of fact the defendant’s complicity in the crimes on which it was relying. The defendant further argued that the government’s position, if persuasive, would violate the defendant’s rights to due process and to not being subject to any ex post facto law. See U.S. Const. Art. I, § 9; Am. XIV; Defendant’s Second Supplemental Sentencing Memorandum, filed March 24, 1992, pp. 11-14; 16-17. The defendant also had a number of other objections. I received a series of increasingly refined memoranda from the parties. I also received numerous affidavits and voluminous documentary evidence. I held conferences on March 3 and 26, April 8 and 9, and May 5, 11 and 12, 1992. As stated in my May 11, 1992 order, I found it was appropriate to hear testimony from Philip Leonetti and Special Agent of the FBI, James Maher, as experts whose testimony might be helpful on the question whether the Patriarca Family had routine practices which would tend to prove that the defendant should be punished for the Limoli murder, as relevant conduct or as a basis for an upward departure. See Fed. R.Evid. 406. In addition, such evidence of possible practice was also relevant to the defendant’s involvement in at least some of the other crimes alleged by the government, including the murder of Ted Berns. The Court did not find that the evidence presented necessitated testimony regarding the disputes relating to the Travel Act violations. I indicated that after hearing Leo-netti and Maher, I would decide whether taking additional evidence was warranted. I heard the testimony of Leonetti and Maher on May 18, 19 and 20, 1992. At the outset of that testimony, I told the parties of my doubts concerning the government’s position on relevant conduct. I told the parties, however, that I would consider the evidence I was about to hear on the issue of departures as well as the question of relevant conduct. On May 26 and 27, 1991, I heard argument from the parties regarding the Travel Act disputes, relevant conduct and departures. I then took this matter under advisement. Since taking the matter under advisement, I have studied the voluminous documentary evidence. For reasons I will describe in more detail later, I find that no additional testimony is warranted. The defendant did not offer any evidence to refute the information the government submitted regarding his relationship with Salvatore Michael Caruana, although given an opportunity to do so in my Orders of March 4 and April 10, 1991. As I will describe in detail later, the government has not offered sufficient evidence to justify taking additional testimony or evidence on the other alleged crimes it relies on for departure. See, e.g., U.S.S.G. § 6A1.3(a) (“[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an opportunity to present information to the court regarding that factor”); Fed. R.Crim.P. 32(c)(3)(A) (“The court shall afford the defendant and the defendant’s counsel an opportunity to comment on the [presentence] report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it”) (emphasis added); see also United States v. Zuleta-Alvarez, 922 F.2d 33, 35-36 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2039, 114 L.Ed.2d 123 (1991). Thus, I have all the evidence, briefing and arguments necessary and appropriate to decide the disputed sentencing issues. I have done so. IV. The Travel Act Violations. To put the Travel Act violations in context again, the defendant has pled guilty to all the charges against him. These charges include: Count 1 involving a RICO conspiracy; Count 2, the substantive RICO charge; Count 30, the Travel Act conspiracy; Count 31, the Travel Act violation occurring in August, 1985 involving Robert Carrozza; Count 36, the Travel Act violation occurring in August, 1989 involving Matthew Gugliemetti’s travel to Connecticut; Count 38, the Travel Act violation relating to travel preceding the October, 1989 induction ceremony involving this defendant and Joseph Russo; and Count 39, the Travel Act violation in connection with the induction ceremony on October 29, 1989. All of the predicate acts and substantive offenses the defendant is personally charged with in the Superseding Indictment involve the Travel Act, 18 U.S.C. § 1952. These are summarized in the defendant’s pattern of racketeering activity. See Superseding Indictment, pp. 42-43. With regard to Count 1, the RICO conspiracy, Racketeering Act F-l does not involve a separate substantive count. See Superseding Indictment, p. 22. It has, however, been included in the Guidelines calculation as if it constituted a count of conviction. See U.S.S.G. §§ 3D1.2 and 3D1.3. Racketeering Act F-l is not mentioned in Count 30, the Travel Act conspiracy. Racketeering Act F-l alleges travel between Massachusetts and Rhode Island in February 1981, when the defendant served as a messenger for his father. More specifically, it involves travel which was electronically surveilled by the FBI and in which the defendant expressed his desire not to serve as the messenger for his father and not to have to bother with members of the LCN in Boston. See Ring Aff. ¶ 10; see also Trial Brief of United States, pp. 102-03. The Presentence Report rates the travel for Predicate Act F-l as a Level 6, involving travel concerning structure. See Section 2E1.2(a)(l). At that time, the defendant was not the Boss of the Patriarca Family, so there is no adjustment for role in the offense. Neither the government nor the defendant has objected to this rating. Racketeering Act F-3 corresponds to Count 31. Count 31 involves the August 1985 travel by Robert Carrozza, concerning Carrozza’s desire to replace the deceased Tameleo as the person Frank Mantia would have to pay in connection with his loansharking debts. See Superseding Indictment, pp. 23; 109. The Presentence Report recommended that the Court find the travel occurred in furtherance of extortionate credit transactions and thus be rated as a Level 20. See U.S.S.G. § 2E2.1, “Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means.” I note that this is a rating given in the Presentence Report regarding Robert Carrozza himself. The government did not object to this with regard to Carrozza. The government now, however, asserts that the rating should reflect that the travel was in aid of drug distribution because Carrozza intended to use the money to buy cocaine, and this, therefore, constitutes relevant conduct for Patriarca. See U.S.S.G. § 1B1.3. The government contends that the adjusted Offense Level for Count 31 should be 34; 30 being a narcotics rating based on the amount of drugs allegedly involved and 4 being the upward adjustment for the defendant’s role in the offense. See U.S.S.G. §§ 2D1.1(c)(7); 3Bl.l(a). The defendant claims it should be a Level 6 because there is no proof that loansharking was involved. See U.S.S.G. § 2E1.2(a), “Interstate of Foreign Travel in Aid of a Racketeering Enterprise.” For reasons I will explain, the Probation Department is correct. The proper rating is Level 20 because the travel was in aid of extortion, not narcotics, and the government has failed to prove by a preponderance of the evidence that the narcotics dealing of Carrozza constituted relevant conduct attributable to Raymond J. Patriarca. As I will explain later, the fact that the government’s position may have been different with regard to Carrozza, or any other defendant, on any of these matters, is not material to the analysis that I have done. I am not relying on that in any way. Probation has added 4 levels under § 3Bl.l(a) because of the defendant’s role in the offense as Boss of the Family. Defendant does not object to this. So, Racketeering Act F-3 and Count 31 are rated as a Level 24. Racketeering Act F-8, which corresponds to Count 36, involves Gugliemetti’s travel from Rhode Island to Connecticut on or about August 10, 1989. See Superseding Indictment, pp. 26; 114. The Probation Department rates that travel as in furtherance of extortion, specifically loansharking, and as a Base Offense Level 20, with a four Level increase for the defendant’s role as Boss. The defendant objects, asserting that this travel related only to structure, so it should be rated as Level 6 and adjusted upward to 10 based on his willingness not to dispute, for present purposes, his status as Boss of the Family. I find that the Probation Department is correct, and this violation should be rated as a Level 24. Racketeering Act F-10 and Count 38 relate to the pre-October 29, 1989, travel involving the defendant Joseph Russo. See Superseding Indictment, pp. 28; 116. The Probation Department recommended that this be rated as Level 6 as travel relating to structure and adjusted upward four levels for the defendant’s role as Boss. Neither the government nor the defendant has objected to that rating. Racketeering Act F-ll corresponds to Count 39, concerning the travel relating to the October 29, 1989 induction ceremony. See Superseding Indictment, pp. 28; 117. The Probation Department recommended that the travel be rated in the same way as Count 38, as travel relating to structure, with a Base Offense Level of 6, adjusted upward to 10 for the defendant’s role in the offense. The government objected, asserting it was travel in the aid of extortion, which would be a Base Offense Level 20 and adjusted upward four levels. As I indicated earlier, I agree that Count 39 should be at least rated as Base Offense Level 12, see U.S.S.G. § 2E3.1, “Engaging in a Gambling Business,” and probably as Level 20, see U.S.S.G. § 2E2.1, “Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means,” with an upward adjustment of 4 for the defendant’s role as Boss. See U.S.S.G. § 3Bl.l(a). Either way, the effect on the Guidelines is the same. See U.S.S.G. §§ 3D1.1, 3D1.3, 3D1.4. Under the multiple count analysis, the defendant’s Base Offense Level is raised from 26 to 27. The government did not object to the Presentence Report recommendation regarding Count 30, the Travel Act conspiracy. See Superseding Indictment, pp. 103-OS. The only allegations in Count 30 regarding this defendant are overt act 3, the February of 1981 travel to Rhode Island to discuss structure with the defendant; overt act 10, the August 1989 Gugliemetti travel to Connecticut; and over act 12, relating to the travel to the induction ceremony. Id. at 105; 107. With regard to the standards for determining the Base Offense Level, the Guidelines in § 1B1.2 Subsection (a) direct the court to “[djetermine the offense guidelines section most applicable to the offense of conviction.” U.S.S.G. § lB1.2(a). Subsection (d) of Section 1B1.2 indicates that on a count of conviction charging a conspiracy to commit more than one offense, the court should treat the matter as if the defendant had been convicted on a separate count for each offense he conspired to commit. U.S.S.G. § lB1.2(d). As the parties recognize, with regard to the Travel Act counts, § 2E1.2, which expressly applies to violations of 18 U.S.C. § 1952, the Travel Act, is the applicable Guidelines section. Section 2E1.2 establishes a Base Offense Level of the greater of Level 6, or “the offense level applicable to the crime of violence or other unlawful activity in respect to which the travel was undertaken.” U.S.S.G. § 2E1.2(a)(2). Disputed Counts 31, 36 and 39 and the corresponding Racketeering Acts, do not allege travel to commit any crime of violence. All three allege travel to carry on an “unlawful activity.” In this context, the term “unlawful activity” has a specific meaning provided expressly in 18 U.S.C. § 1952. “Unlawful activity,” as defined in 18 U.S.C. § 1952(b), means: (1) any business enterprise involving gambling or narcotics; and (2) extortion. Travel to carry on a RICO enterprise in violation of 18 U.S.C. § 1961, et seq., is not defined as “unlawful activity” for the purpose of 18 U.S.C. § 1952 and U.S.S.G. § 2E1.1. However, travel to promote a business enterprise involving gambling or a narcotics business is included. With regard to the disputed Counts 31, 36 and 39, the Superseding Indictment charges alternative forms of unlawful activity that the interstate travel was intended to promote. See, e.g., Superseding Indictment, Count 31, p. 109 (“... Raymond J. Patriarca ... did unlawfully, willfully and knowingly travel or cause travel to o