noting that the trial protected “each defendant’s rights by instructing the jury that it should consider the evidence separately as to each defendant in each count.”
How later courts described this case
- noting that the trial protected “each defendant’s rights by instructing the jury that it should consider the evidence separately as to each defendant in each count.”
- finding that the office of Madison County Sheriff was a RICO enterprise
- upholding claim that Sheriffs Office was corrupted by bribes paid to the sheriff and deputy sheriff in a towing and prostitution payoff scheme
- holding Madison County Sheriffs Office, like other public entities, is a proper RICO enterprise
Written by the judges who cited it.
The opinion
FAIRCHILD, Chief Judge,
dissenting in part.
I
Defendants sought dismissal of Count 1 of the Indictment on the ground that the Sheriff’s Department is not an “enterprise” under RICO, and that Count 1 therefore did not state an offense.
I agree with the majority that a sheriff’s department is an “enterprise.” Accordingly, 18 U.S.C. § 1962 (c) makes it unlawful for a person employed by or associated with a sheriff’s department whose activities affect interstate commerce to conduct or participate in the conduct of the department’s affairs through a pattern of racketeering activity. Section 1962(d) makes it unlawful to conspire to violate subsection (c). Count 1 charged Maeras (the Sheriff), Cooper (a Deputy Sheriff), Stoller, and his corporation with so conspiring from January 1, 1971 to November 29, 1978.
I agree there was no error in denying the motion to dismiss Count 1.
II
I do have a problem, however, with the proof of Count 1. There was no evidence that Stoller agreed in any way to the series of extortions in which Maeras and Cooper (and others) had been involved. At best for the government, there was evidence of two distinct agreements, with Stoller and his company parties to only one of them.
It is clear enough that the series of extor-tions and bribes related to the conduct of affairs of the Sheriff’s Department. In return for the money, the Sheriff and his deputies agreed to refrain from enforcing the law. Bribery and extortion constitute racketeering activity under § 1961(1) and two or more instances could be deemed a pattern of racketeering activity under § 1961(5). Maeras and Cooper, accordingly, could have been found guilty of conspiracy to conduct the affairs of the Department through a pattern of racketeering activity. It should be noted, however, that these episodes occurred from 1970 to 1973, and separate prosecution for that pattern of activity would have been barred by the statute of limitations at the time of the indictment.
Stoller’s activity was carried on from 1971 to 1975. It consisted of fund raising for the Deputy Sheriff’s Association. Although that type of activity has often been criticized for its sinister implications, there is no claim or proof in this case that contributions to the Association bought favors from the Sheriff’s Department or otherwise affected the conduct of the Department’s affairs. There was evidence, however, that after mid-1972 Stoller agreed with Maeras, through Cooper, that a portion of the contributions obtained would be paid to Maer-as. This diversion of funds was not disclosed to the Association members or contributors, and the theory of the mail fraud convictions was that the members and contributors were thus defrauded. There was evidence, although disputed, that the diversions of money occurred, and thus there was support for the mail fraud and wire fraud convictions.
*1322 Stoller was induced to pay Sheriff Maer-as by Cooper’s and Burns’ assertion that because Maeras knew everybody and was powerful in the county, fund raising would be doomed if it did not have his approval. Acts of mail fraud and wire fraud are racketeering activity under § 1961(1), and two acts constitute a pattern under § 1961(5), but it is not so clear that the Sheriff’s receipt of money in return for tacit approval of legitimate fund raising activity constitutes the conduct of the affairs of the Sheriff’s Department. I would not, however, hold as a matter of law that it did not. So assuming, Stoller could be convicted of conspiracy with Cooper and Maeras to conduct the affairs of the Sheriff’s Department through a pattern of repeated acts of mail fraud, but that pattern did not include the bribery and extortion episodes.
I disagree with the holding in United States v. Elliott, 571 F.2d 880, 902 (5th Cir.), cert. denied, 439 U.S. 953 , 99 S.Ct. 349 , 58 L.Ed.2d 344 (1978), relied on by the majority, that a defendant’s complicity in one type of unlawful activity in the conduct of the affairs of an enterprise can make him criminally responsible under RICO for other and distinct types of unlawful activity of which he has no knowledge or responsibility in fact. Such a conclusion, applied to the facts of this case, significantly expands the reach of conspiracy prosecutions. See Blumenthal v. United States, 332 U.S. 539, 558 , 68 S.Ct. 248, 257 , 92 L.Ed. 154 (1947).
If Maeras and Cooper had been charged with conducting or conspiring from 1971 to early 1973 to conduct the affairs of the Department through a pattern of racketeering activity, the statute of limitations would have barred the prosecution. Assuming again, however, that the Sheriff’s receipt of a portion of the contributions to the Association constitutes the conduct of the affairs of the Sheriff's Department, Maeras and Cooper might have been charged, and convicted on the present evidence, of conspiracy from 1971 to 1975 to conduct the affairs of the Sheriff’s Department through a pattern of racketeering activity consisting of both the extortion conduct and the mail fraud conduct. Probably the trial on a charge of a single conspiracy with Stoller and his company has not been unfair to Maeras and Cooper, even though the proof does not support the proposition that Stoller and his company were part of the single conspiracy charged.
It seems to me, however, that Stoller and his company have suffered prejudice in being tried on a charge of a single conspiracy which embraced within the “pattern” a great many corrupt acts quite different from and more dramatic, colorful, and obviously culpable than the nondisclosure in which they may have been involved. Once it became evident that Stoller and his company were not accountable for the extortion and bribery, they may have been entitled to severance and a separate trial, probably on a superceding indictment confining the conspiracy count to the mail and wire fraud allegations. If not entitled to severance, they were at least entitled to instructions that would have limited the proof to be considered against them. Cf. Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946).