United States v. Justin Rone, United States of America v. Roy Dupont Little

ELY, Circuit Judge

(dissenting):

I respectfully dissent from that portion of the majority opinion which upholds appellants’ convictions under the Anti-Racketeering Statute, 18 U.S.C. § 1961 et seq. (1970) (hereinafter cited RICO).

As reprehensible as one should consider appellants’ criminal activities to have been, I simply cannot conclude from my reading of the statute and its relevant legislative history that Congress intended RICO’s broad proscriptions to encompass such an illicit association as the association of Rone and Little in this case. Such a conclusion, I realize, aligns me in opposition not only to my Brothers’ interpretation of the term “enterprise,” but also to the reported views of three other Courts of Appeals. 1 Nevertheless, I am constrained to side with Judge Van Graafeiland who, dissenting in United States v. Altese, 542 F.2d 104, 107-111 (2d Cir. 1976), cert. denied, 429 U.S. 1039 , 97 S.Ct. 736 , 50 L.Ed.2d 750 (1977), wrote:

Because I believe that the majority’s holding radically extends federal jurisdiction to virtually every criminal venture affecting interstate commerce, I must *574 dissent. Although such a large scale incursion by the federal government into matters traditionally of local concern may be constitutionally permissible, I do not believe that such a step should be taken in the absence of clear Congressional direction. With all due respect to my brothers, I am unable to find such a mandate in either the statutory language or the legislative history of Title IX of the Organized Crime Control Act of 1970, 84 Stat. 922 , 941-948.

The majority places great reliance on the word “any” which precedes “enterprise” in 18 U.S.C. § 1962 . The significance of this word escapes me. “Enterprise” is defined in 18 U.S.C. § 1961 (4). If, in fact, that definition encompasses only legitimate business or organizations, placing the word “any” before the defined phrase in § 1962 should not expand its meaning.

* * * * *

Even were I to agree with the majority’s facial reading of the statute, I would, nevertheless, feel duty bound to examine the legislative history to ascertain Congressional intent. In expounding a statute, we must not be guided by a single sentence or word therein. Rather, we must look to the provisions of the whole law so that we may give effect to the legislative will. Philbrook v. Glodgett, 421 U.S. 707, 713 , 95 S.Ct. 1893 , 44 L.Ed.2d 525 (1975). “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Church of the Holy Trinity v. United States, 143 U.S. 457, 459 , 12 S.Ct. 511, 512 , 36 L.Ed. 226 (1892). Muniz v. Hoffman, 422 U.S. 454, 469 , 95 S.Ct. 2178 , 45 L.Ed.2d 319 (1975).

A review of the legislative history of Title IX leaves no doubt that Congress never contemplated that “enterprise” as used in §§ 1961, 1962 would extend beyond legitimate businesses or organizations. See S.Rep.No.91-617, 91st Cong., 1st Sess. (1969); H.R.Rep.No.91-1549, 1970 U.S.Code Cong. & Admin.News, pp. 4007, 4032-4036; Comment, Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for “Criminal Activity ”, 124 U.Pa.L.Rev. 124, 204-206 (1975). There is nothing in the floor debates that would indicate that any member of Congress expected or desired the far reaching interpretation of Title IX postulated by the majority herein. 116 Cong.Rec. 585-586, 35,193-35,319 (1970) ....

* * * * * *

The end result of the majority’s expansive interpretation of § 1962(c) is to accord the word “enterprise”, intended by Congress to be synonymous with commercial business, parity with the term “conspiracy”. Hereafter, the Government will justifiably feel free to utilize § 1962(c) to prosecute any unlawful venture engaging in, or the activities of which affect, interstate commerce where the participants therein committed any two acts of “racketeering activity”.

Id. at 107-108. I fully subscribe to Judge Van Graafeiland’s logical and perceptive analysis. See also United States v. Moeller, 402 F.Supp. 49, 58-59 (D.Conn.1975) (persons associated for illicit purpose of arson not a RICO “enterprise”). 2

As to Parts IV and V of the majority opinion, I concur.

. United States v. Elliott, 571 F.2d 880, 897-98 (5th Cir. 1978), cert. denied, 439 U.S. 953 , 99 S.Ct. 349 , 58 L.Ed.2d 344 (1979); United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir. 1974), cert. denied, 420 U.S. 925 , 95 S.Ct. 1121 , 43 L.Ed.2d 395 (1975); United States v. Altese, 542 F.2d 104, 106 (2d Cir. 1976), cert. denied, 429 U.S. 1039 , 97 S.Ct. 736 , 50 L.Ed.2d 750 (1977).

. In Moeller , District Judge Newman wrote as follows:

If “enterprise” in section 1962(c) includes unlawful ventures, then the statute could be used to prosecute any unlawful activity that affected interstate commerce so long as the participants in the activity committed any two acts within the broad definition of racketeering activity. Congress may have power to extend federal criminal jurisdiction that far into areas normally handled by the state, but it should take a clear indication of legislative intention before such sweeping purpose is attributed to it.

United States v. Moeller, 402 F.Supp. 49, 59 (D.Conn. 1975).