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
CUDAHY, Circuit Judge,
dissenting:
The indictment in the instant case charged one RICO conspiracy encompassing two clearly separate and distinct criminal schemes. The only connection between the *1323 schemes was “their inclusion in one illegal ‘enterprise’: 1 namely, the Madison County Sheriff’s Office.” Maj. Op. at 1316. I believe, however, that the evidence here established two independent RICO conspiracies, see Chief Judge Fairchild’s dissent at 1321, 1322, and the joinder of those crimes in one indictment was therefore improper. Fed.R.Crim.P. 8. 2 See also United States v. Turkette, 632 F.2d 896, 906-10 (1st Cir. 1980), rev’d on other grounds, - U.S. -, 101 S.Ct. 2524 , 69 L.Ed.2d 246 (1981). Reversal is thus required under Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946), which held that proof of multiple conspiracies under an indictment alleging a single conspiracy can constitute a material variance from the indictment and violate the rights of the defendants not to be tried “en masse for the conglomeration of distinct and separate offenses committed by others. ...” Kottea-kos, 328 U.S. at 775 , 66 S.Ct. at 1252 .
Unlike the majority, I do not agree that RICO has modified the established law of conspiracy in such a way as to sustain the indictment under the particular facts and allegations of this case. Thus, 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), relied upon an expansive interpretation of RICO’s purpose to hold that the interdependence previously required for independent conspiracies to become parts of a single “chain” conspiracy, was no longer required under RICO. Under RICO, this linkage is supplied by the fact that each independent conspiracy was intended to further the affairs of the “enterprise.” Elliott, 571 F.2d at 902-03 . But here, the Deputy Sheriffs’ Association kickback scheme which linked Stoller and Stol-ler Enterprises to the activities of Sheriff Maeras was not intended to further the affairs of the Madison County Sheriff’s Department, the only “enterprise” alleged in this indictment. Gf. United States v. Webster, 639 F.2d 174, 183-86 (4th Cir. 1981). Even under the position taken by the Fifth Circuit in Elliott , 3 RICO has its limits, and those limits have been exceeded in the instant case.
Even if the activities of the defendants constituted one RICO conspiracy as alleged in the indictment, Stoller and Stoller Enterprises were clearly prejudiced by the failure of the district court to grant their request for a severance. The payoff schemes, of which Stoller was undisputably ignorant, involved evidence of illegal activities of a wholly different nature from the Deputy Sheriffs’ Association fund-raising kickbacks. The jury could not help but be influenced by the evidence of these other apparently flagrant offenses.
I respectfully dissent to the extent indicated.
. Although I had perceived certain difficulties in treating a sheriff’s office as a RICO “enterprise” before the recent decision of the Supreme Court in United States v. Turkette,-U.S. -, 101 S.Ct. 2524 , 69 L.Ed.2d 246 (1981), I think the general thrust of Turkette strongly suggests that a sheriffs office can be such an “enterprise.” I therefore join Part III of the Majority Opinion.
. Because the events relating to the payoff scheme occurred from 1970 to 1973, any attempt to prosecute that particular RICO conspiracy is barred by the statute of limitations.
. I, like Chief Judge Fairchild, have my doubts about whether Elliott was correct in its broad revamping of the law of conspiracy for RICO prosecutions. Fairchild, C. J., dissenting, supra at 1321-1322. See also United States v. Zemek, 634 F.2d 1159 , 1169 n.12 (9th Cir. 1980), cert. denied, 450 U.S. 916 , 101 S.Ct. 1359 , 67 L.Ed.2d 341 (1981).