United States v. Sutton

ENGEL, Circuit Judge,

dissenting. I respectfully dissent.

I.

The majority opinion treads heavily upon the notion that “enterprise” is somehow ill-used in the Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. §§ 1961-1968 (1976), unless it is redefined to include only legitimate businesses. The majority’s analysis of the legislative history bears out well its conclusion that Congress, in enacting RICO, was primarily concerned with the illegal infiltration of legitimate businesses. Nevertheless, the plain language of the statute is not so limited. It contains no reference either to illegal or legitimate enterprises. I would align our circuit with the five circuits that have thus far held that RICO applies to both. United States v. Swiderski, 193 U.S.App.D.C. 92 , 593 F.2d 1246 (D.C.Cir.1978), cert. denied, - U.S. -, 99 S.Ct. 2055 , 2056, 60 L.Ed.2d 662 (1979); United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039 , 97 S.Ct. 736 , 50 L.Ed.2d 750 (1977); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953 , 99 S.Ct. 349 , 58 L.Ed.2d 344 (1978); United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S. 925 , 95 S.Ct. 1121 , 43 L.Ed.2d 395 (1975); United States v. Rone, 598 F.2d 564 (9th Cir. 1979). I particularly subscribe to the views expressed by the majority opinions in Altese and Rone .

The majority’s efforts to redefine “enterprise” as any organization that “is organized and acting for some ostensibly lawful purpose, either formally declared or informally recognized” is reminiscent of a similar unsuccessful effort on the part of our circuit to judicially amend the Hobbs Act, 18 U.S.C. § 1951 (1976), by limiting its application in some way to activities which could be characterized as “racketeering.” United States v. Yokley, 542 F.2d 300 (6th Cir. 1976). This interpretation of the Act, however, was rejected by the Supreme Court. United States v. Culbert, 435 U.S. 371 , 98 S.Ct. 1112 , 55 L.Ed.2d 349 (1978). See also United States v. Callahan, 579 F.2d 398, 400 (6th Cir. 1978).

Just as the Hobbs Act was undoubtedly originally directed toward racketeering activities, Culbert, supra, 435 U.S. at 374 , 98 S.Ct. 1112 , I have no doubt that RICO was primarily directed toward the infiltration of legitimate businesses. In neither case, however, has the Congress by its express language indicated an intention to require *274 proof of either “racketeering” or “legitimate enterprise” as an element of the crime. As much as I might agree that the broad language of RICO renders it possible for federal enforcement to intrude heavily into areas of traditional state domain, there is no suggestion that Congress was constitutionally impeded from casting so wide a net if it desired. The potential problems which the majority’s opinion here will pose in enforcement of the Act are immense and varied. It would not be surprising if it was this very practical consideration which persuaded the Congress to adopt the broader language.

II.

Assuming with the majority that the RICO counts are invalid, I would nevertheless not dismiss the substantive counts on the basis of misjoinder.

The majority reasons that “Without benefit of the ‘criminal enterprise’ concept . there is simply no basis for lumping the four categories of offenses with which appellants were variously charged into a single ‘series of acts or transactions’ within the meaning of Rule 8(b).” That the defendants were running a virtual department store of crime rather than a single specialty shop does not necessarily render the offenses less subject to joinder under Rule 8, Fed.R.Crim.P.. Nonetheless, on these facts, I must agree that joinder might be improper under Rule 8, absent the RICO counts to bind them. I disagree, however, as to the effect of this misjoinder.

In my opinion, the misjoinder here is the type of retroactive misjoinder which the Supreme Court has held not automatically to mandate reversal. Schaffer v. United States, 362 U.S. 511 , 80 S.Ct. 945 , 4 L.Ed. 2d 921 (1960). In fact, the instant case presents even stronger reasons for not reversing the convictions than the Supreme Court faced in Schaffer . 1 The good faith of the government can hardly be questioned where the construction of the statute which brought about the charge and joinder of counts was one which had been adopted by several other circuits. In such a circumstance there is hardly any justification for imposing a prophylactic rule, if that is what is intended by the majority. Had I any doubts as to the good faith on the part of the government in seeking joinder, I would not hesitate to reverse. Because I do not, I fail to see the need for the action taken by the majority. We should be slow to reverse a conviction absent some prejudice to the defendant or some concomitant benefit to the administration of justice. The per se rule laid down by the majority takes into account neither consideration.

Assuming that reversal is not mandated, on the facts here, by Rule 8 misjoinder, reversal may still be necessary upon a showing of prejudice to the defendants caused by that joinder. See Rule 14, Fed.R.Crim.P. The record discloses however, that the decision of the district judge that there was insufficient prejudice in the joinder to warrant severance is not in my opinion clearly erroneous. E. g., United States v. Mayes, 512 F.2d 637, 645 (6th Cir.), cert. denied, 422 U.S. 1008 , 95 S.Ct. 2629 , 45 L.Ed.2d 670 (1975). By way of illustration, the district judge fully demonstrated his sensitivity to the dangers of misjoinder by severing the trial of Charles Thomas Hill, who was charged in the same indictment as the defendants here and whose conviction is similarly upset today.

The defendants primarily argue that the joinder acted to their prejudice by permitting the government to introducé against each defendant evidence concerning the actions of the co-defendants. 2 This, however, *275 did not so prejudice the defendants as to require reversal of the convictions. It must be remembered that there exists a co-conspirator exception in conspiracy cases as a rule of evidence and that evidence as to the acts of co-conspirators can be used in support of a substantive count, even though the indictment does not allege a conspiracy. United States v. Pope, 574 F.2d 320, 328 (6th Cir.), cert. denied, 436 U.S. 929 , 949, 98 S.Ct. 2828 , 56 L.Ed.2d 774 , 98 S.Ct. 2856 , 56 L.Ed.2d 792 (1978); United States v. Mitchell, 556 F.2d 371 , 377 n. 6 (6th Cir.), cert. denied, 434 U.S. 925 , 98 S.Ct. 406 , 54 L.Ed.2d 284 (1977); United States v. Jones, 542 F.2d 186 , 202 n. 31 (4th Cir.), cert. denied, 426 U.S. 922 , 96 S.Ct. 2629 , 49 L.Ed.2d 375 (1976). Thus it was not even necessary for the government to have alleged a conspiracy or a violation of RICO in order to bring forth much of the evidence that it did at trial if, in fact, the activities involved showed a common enterprise, which would permit the application of the co-conspirator exception. The majority’s opinion demonstrates the applicability of this exception. Its reversal of the RICO counts is not based on the ground that there was an insufficiency of evidence of a criminal enterprise, but on the contrary, is based on the ground that the conspiracy proved was shown to be illegal and not legal. For these reasons it is difficult for me to see how any conviction on the substantive counts has been tainted by their joinder with the RICO counts.

III.

I agree with the conclusion of the majority that denials of the motions to suppress the fruits of the electronic surveillance of the telephone at Holmes’ residence and the search of the apartment on Clarion Avenue were correct.

IV.

In conclusion I would affirm the judgment of the district court in all respects. Further, even if the convictions under RICO were reversed, I would nonetheless affirm the convictions on the substantive counts.

. In my view a failure to prove any conspiracy at all, because of a lack of evidence thereof, as in Schaffer , is far more suggestive of bad faith on the part of the government because it is open to the charge that the allegation of a conspiracy which could not be proved was merely a device to prejudice the defendants in their efforts to defend themselves against the separate charges. That is not the case here, where, in essence, the government proved too much,

. Statements by co-conspirators during the course and in furtherance of the conspiracy are not hearsay. Rule 801(d)(2)(E), Fed.R.Evid.