[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 16, 2008
                             No. 07-12077                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 05-60149-CR-JIC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES LYNCH,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 16, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
                                           I.

      James Lynch appeals his conviction for violating the Racketeer Influenced

and Corrupt Organizations Act, 18 U.S.C. § 1962(c) (“RICO”), by conducting the

affairs of the American Maritime Officers Union (“Union”) and its member benefit

plans (“Plans”) through a conspiracy of racketeering activity, by which Lynch and

his three co-conspirators, Robert McKay (“Robert”), Michael McKay (“Michael”),

and Phillip Ciccarelli, sought to dominate and control the operations of the Union

and the Plans in order to maintain their positions and enrich themselves.

      Lynch, an employee of the Plans, was a captain of one of the Plans’s motor

vessels, the “AMOS.” As part of the conspiracy, Lynch solicited a cash payment

of $30,000 from the owner of a boatyard where Lynch took the AMOS for repairs.

Lynch then gave the money to the executive director of the Plans to be used to

reimburse employees for their political contributions. Lynch also instructed the

boatyard owner to inflate the invoice to cover the cost of repairs to a dive boat

owned by Michael. Furthermore, Lynch inflated his expenses on things such as

restaurant receipts to cover his personal costs.

      On appeal, Lynch contends that because he was a “mere captain,” he should

not “have been pegged” with involvement in the conspiracy, and the government

did not establish the necessary nexus between his acts of racketeering and the



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enterprise of the Union and the Plans. He further argues that the predicate acts of

which he was found guilty lacked continuity and did not establish a pattern of

racketeering.

                                          II.

      We review the sufficiency of the evidence to support a conviction de

novo, “viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences and credibility choices in favor of the jury’s

verdict.” United States v. Rodriguez, 

, 1244 (11th Cir. 2000). We

will uphold the district court's denial of a motion for judgment of acquittal “if a

reasonable trier of fact could conclude that the evidence establishes the defendant's

guilt beyond a reasonable doubt.” 

the credibility of

witnesses fall within the exclusive province of the jury and may not be revisited by

us unless the testimony is “incredible as a matter of law.” United States v.

Calderon, 

, 1325 (11th Cir. 1997) (citation omitted).

                                         III.

      Pursuant to the RICO statute, “[i]t shall be unlawful for any person

employed by or associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs through a pattern of



                                           3
racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). In order

to establish a RICO conspiracy, the government must prove: “(1) that an enterprise

existed; (2) that the enterprise affected interstate commerce; (3) that the defendants

were employed by or associated with the enterprise; (4) that the defendants

participated, either directly or indirectly, in the conduct of the enterprise; and (5)

that the defendants participated through a pattern of racketeering activity.” United

States v. Browne, 

, 1257 (11th Cir. 2007) (citing United States v.

Starrett, 

, 1541 (11th Cir. 1995), cert. denied, ___ S. Ct. ___, 76

USLW 3512 (U.S. Jun. 23, 2008)).

      To establish the fifth element of a RICO conspiracy, the government must

prove that the predicate acts related to the enterprise charged and that they actually

formed a pattern, in that they related to each other and had continuity. 

. Regarding the relationship element, the predicate acts must “have

the same or similar purposes, results, participants, victims, or methods of

commission, or otherwise [be] interrelated by distinguishing characteristics and . . .

not [be] isolated events.” Sedima, S.P.R.L. v. Imrex Co., Inc., 

, 496

n.14, 

, 3285 n.14, 

(1985) (quoting 18 U.S.C. §

3575(e)). Continuity can be proven under a closed-ended theory – by

demonstrating a series of related predicate acts extending over a substantial period



                                            4
of time – or under an open-ended theory – by demonstrating a threat of continuity

extending into the future by showing that: (1) the predicate acts include a specific

threat of repetition extending into the future indefinitely; or (2) the predicate acts

are part of an entity’s regular way of doing business. 

(citing H.J., Inc. v. Northwestern Bell Tel. Co., 

, 

, 

(1989)). “Any two predicate acts can be sufficient for the jury to

find continuity.” 

“Reversal of either a jury's finding of continuity or a

conviction on a substantive RICO count is not required simply because some

predicate acts are factually insufficient, as long as there remain at least two

adequately proven acts.” 

      The government did not need to prove that Lynch agreed to participate in all

of the substantive predicate acts associated with the conspiracy, as a defendant can

be found guilty of a conspiracy even if he did not commit the substantive acts, and

“[t]he touchstone of liability is an agreement to participate in a RICO conspiracy,

which may be shown in two ways: (1) showing an agreement on the overall

objective of the conspiracy, or (2) showing that a defendant agreed to commit

personally two predicate acts, thereby agreeing to participate in a ‘single

objective.’” 

Where there is no direct evidence of an agreement on an

overall objective, the government can use circumstantial evidence of a scheme or



                                            5
inferences from the conduct of the alleged participants to prove that an agreement

existed, in which each defendant must have known that others also were conspiring

to participate in the same enterprise. 

the record demonstrates that the government established, through

direct trial testimony, that Lynch committed at least two of the predicate acts

charged, including: (1) theft and embezzlement from the Plans by arranging for the

boatyard owner to give him $30,000 in cash, to be used by Michael for political

contributions, and to inflate the repair invoices for the AMOS to pay for the repair

costs for two of Michael’s personal dive boats; and (2) theft and embezzlement

from the Plans by inflating his own expense submissions and receiving

reimbursement for expenses unrelated to his employment. These acts, which

evidenced Lynch’s indirect participation in the conduct of the enterprise, were

sufficient to establish a pattern because they were related to each other – they

involved the same purpose of financial enrichment for the co-conspirators – and

they had continuity because the conspirators anticipated continuing the acts into

the future indefinitely. Therefore, we conclude that the evidence presented by the

government was sufficient to allow a reasonable trier of fact to conclude that

Lynch was guilty beyond a reasonable doubt. Accordingly, we affirm Lynch’s



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conviction.

      AFFIRMED.




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