# Petition — Davis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1203%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 836 ## Text October Term, 1977 No. €@-1821 RICHARD A. DAVIS, Petitioner, Vv. UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT RICHARD C. SNELBAKER, SNELBAKER, MCCALEB & ELICKER, Counsel for Petitioner 44 West Main Street, Mechanicsburg, Pennsylvania 17055 ae ee ee Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840 TABLE OF CONTENTS NS. 5c cd beh weed cs 000 68 Gh I 4 See Se ddiniet ccssaccs ne a i ie aa Constitutional Provisions and Rules of Evidence ihe TIEN SNA RRR pe igs clr Ne SP OPE E PTE er Reasons for Granting the Writ: A. The Courts below erred by failing to dis- miss the superseding indictment because it includes charges which are not chargeable and punishable under State law due to the running of the State statute of limitations and repeal of one State law ............ B. The Courts below erred by failing to dis- miss the superseding indictment because it failed to apprise Petitioner of the factual basis of the alleged acts of racketeering ... C. The Courts below erred in refusing to grant a mistrial after witness Sedeshe testified . . D. The Courts below erred in permitting evi- dence of other crimes to be admitted in the Government’s case in chief ............. E. The Courts below erred in denying Peti- tioner’s motion for judgment of acquittal . . Na i wie eae ae Appendix I. (Judgment and Opinions of the United States Court of Appeals for the Third Circuit) 1A Appendix II]. (Order and Opinion of the United States District Court for the Middle District of Pennsylvania) ..........2-eseeeeececees 16A TABLE OF CITATIONS CASES: American Tobacco Co. v. United States, 328 US. Pee COE wcbcodecscoccésévabitccercer 28 California v. Choung, 320 F. Supp. 625 (Cal. EE 6. bi cicdced ceceneawans's bund 4s 04,00 16 Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed AE NG | tx eS Oo bs Owes TEs. 19 United States v. Camp, 541 F.2d 737 (C.A. 8, Tc tiskcned noses dad AA* ee casaas ¢9.0° 18 United States v. Cavallino, 498 F.2d 1200 (Sth Cir., BEE 6 bow 0 wise SOR ees eR Se 66 re IGT LES 26 United States v. Cook, 538 F.2d 1000 (3d Cir., SO Gc swd ciwwes chan ot wes ie bbh oe ee 25, 26 United States v. Forsythe, 550 F.2d 1127 (3d Cir. PK? Jcvudidseysctescehanpembarnecess 12 United States v. Klein, 515 F.2d 751 Gd Cir., CARS pe ale 4 var are aera er re SA ee 25 United States v. Laverick, 348 F.2d 708° (3d Cir. SE? DallUu a eek 6 Kees is emda 59 cb See 14, 15 United States v. Little, 317 F. Supp. 1308 (Del., SOD ok ckSi. cd. Gere. veri warty O08. 16, 18 United States v. Nance, 533 F.2d 699 (D.C. Cir., | SS eye ii United States v. Radetsky, 535 F.2d 556 (C.A. 10, ET ts oo ee Whadn a tac kb bASU SUeeNe ee? 19 United States v. Ring, 513 F.2d 1001 (6th Cir et ee ee oS edn oe bhai baa S 27 United States v. Russell, 369 U.S. 749, 82 S.Ct. : 1038, 8 L.Ed. 2d 240 (1962) .......... 15, 17,18 United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, | ee en Se. . vc ecene sb ¥ecsse se 18, 25 United States v. Thomas, 444 F.2d 919 (D.C. Cir. RE ee en ee eer re 18 Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 ie oS ee ce Cee ashen bas 19 STATUTES: Act of March 31, 1860, P.L. 427, Sec. 77 (19 PS. ee ee aL VE lee Sak 5 odes & 10 Act of June 24, 1939, P.L. 872, Sec. 303 (18 PS. SC er ee ee eee ee eee 10, 14 Act of Dec. 6, 1972, P.L. ——, No. 344, Sec. 108 Pa es GH bo4-5' cs Os Shee seh e eee v st 10 Act of Dec. 6, 1972, P.L. , No. 344, Sec. 4701 Se Cee Geer ads GEO UMOD ccccccvcecs 10, 14, 16 ee bee anes 6 ne eR li ea ee EX a-ak eon 6 ee ewe weeee ews 6,9, 10, 11 Tee ee ene ea 6,9 Or ns oe beled saws 6 FEDERAL RULES: Federal Rule of Evidence No. 12(b) (2) ........ 14 Federal Rule of Evidence No. 403 ........ 5, 23, 25, 28 Federal Rule of Evidence No. 404(b) ........ 5, 23, 28 iii SEED Pee NS AES TOM SUE RC STE 2 SSO eee IN THE SUPREME COURT OF THE UNITED STATES October Term, 1977 No. RICHARD A. DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Petitioner, RICHARD A. DAVIS, prays that a writ of certiorari issue to review the order of the United States Court of Appeals for the Third Circuit rendered in these proceedings on May 24, 1978. Opinions Below and Jurisdiction OPINIONS BELOW The majority and concurring opinions of the United States Court of Appeals for the Third Circuit are presently unreported and appear at Appendix I, infra, pp. Al- A15. The opinion of the United States District Court for the Middle District of Pennsylvania and its order deny- ing Petitioner’s motion for dismissal of the superseding indictment appear at Appendix II, infra, pp. A16-A21. JURISDICTION The order of the Court of Appeals for the Third Cir- cuit denying the Petitioner’s appeal was entered on May 24, 1978. The jurisdiction of this Court is involved un- der 28 U.S.C. §1254(1). Questions Presented QUESTIONS PRESENTE 1. Is the superseding indictment defective because it includes charges which are not chargeable and punish- able under State law due to the running of the State stat- ute of limitations and the repeal of one State law? 2. Is the superseding indictment defective because it failed to apprise Petitioner of the factual basis of the alleged incidents of racketeering? 3. Was it error to refuse the motion for a mistrial made by Petitioner after witness Sedeshe testified to an event involving prior criminal activity? 4. Was it error to permit evidence of other crimes to be admitted in the Governn.ent’s case in chief? 5. Was it error to deny Petitioner’s motions for judgment of acquittal? Constitutional Provisions & Rules CONSTITUTIONAL PROVISIONS AND RULES OF EVIDENCE INVOLVED United States Constitution, Fifth Amendment: “No person shall be held to answer for a capital, Or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall pri- vate property be taken for public use, without just compensation.” United States Constitution, Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” es ee Constitutional Provisions & Rules B. The Rules of Evidence involved are as follows: Federal Rule of Evidence No. 403: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the is- sues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”’ Federal Rule of Evidence No. 404 (b) : “Other crimes, wrongs or acts.—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowl- edge, identity, or absence of mistake or accident.” Statement of the Case STATEMENT OF THE CASE Petitioner was the Warden of the Dauphin County Prison at Harrisburg, Pennsylvania, and was prosecuted criminally by the indictment process in the District Court for the Middle District of Pennsylvania for alleged acts committed while he was acting in his official capacity as Warder The basis for federal jurisdiction for this prose- eution » 18 U.S.C. §3231. Petitioner was indicated by the Grand Jury on June 1, 1977, on two (2) counts: (1) false swearing under 18 U.S.C. §1623 and (2) racketeering under 18 U-S.C. §§1961, 1962(c) and 1963. Various pretrial proceedings were held. On July 13, 1977, a superseding indictment was filed containing three (3) counts: (1) false swearing under 18 U.S.C. §1623 (same as the first count in the original indictment); (2) racketeering under 18 U.S.C. §§1961, 1962(c) and 1963 (same as the second count of the orig- inal indictment plus an additional paragraph averring a further allegation of activity); and (3) corruptly in- fluencing a witness under 18 U.S.C. §1503 (a new count). Count II of the superseding indictment alleged that Petitioner from July 15, 1970 to June 8, 1976, on six dif- ferent occasions, “did offer, confer and agree to confer upon and solicit, accept and agree to accept . . . considera- tion for a decision, opinion, recommendation, vote and exercise of discretion as the Warden of the Dauphin Coun- ty prison... ” Nothing further was provided in the Statement of the Case superseding indictment concerning the nature of the “de- cision’, “opinion”, “recommendation”, “vote” or “e 25 Reasons for Granting Writ Government used Myers’ testimony for its surprise value and its overall damaging effect to inject a whole separate additional criminal act. Petitioner contends that Rule 403 was intended to prevent such an event from occurring. The Court failed in its duty under Rule 403 to exclude it because of the danger of unfair prejudice and the needless presentation of cumulative evidence. Although it has been held that evidence of other of- fenses can be received “if relevant for any purpose”, United States v. Stirone, 262 F.2d 571 (3d Cir., 1958), reversed on other grounds 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed 252 (1960), such a broad interpretation permits the exceptions to swallow the rule against admission of other offensive evidence. It is widely recognized that the general rule holds that evidence of other offenses should be considered inadmissible in criminal prosecu- tions. United States v. Klein, 515 F.2d 751 (3d Cir., 1975). The policy reason behind this rule is the danger that the jury will convict on other offenses than the one for which the defendant is being charged. Consequently, we believe that the rule as stated in Stirone is far too broad. In the case cf United States v. Cook, 538 F.2d 1000 (3d Cir., 1976), it was held that the trial court abused its discretion by admitting evidence of another offense which had a high potential to prejudice the jury and which was only relevant to a collateral issue. The test set forth in Cook is as follows: ‘“. . . the trial judge may in the exercise of his sound discretion, exclude evidence which is logically relevant to an issue other than propensity if he finds 26 Reasons for Granting Writ that the probative value of such evidence is sub- stantially outweighed by the risk that its admission will create a substantial danger of undue prejudice.” P. 1008. The Cook opinion cites guidelines established in United States v. Cavallino, 498 F.2d 1200 (5th Cir., 1974). We urge that these guidelines or “threshold inquiries” be utilized in the instant matter. They are set forth in Cavallino as follows: “1. Is there plainaglear and convincing proof of the commission of the other similar offense by the accused? 2. How recent are the other crimes in relation to the one charged? 3. Are ‘identity’ and ‘intent’ (or whatever exception this evidence is to have probative value toward) material facts in issue? 4. Has the prosecution actual need for this evi- dence? : 5. Considering the prosecutions actual need on these contested issues and its lack of any other evi- dence, does the probative value outweigh the evi- dence? Then the Court should determine whether the proffered evidence fits the exceptions.” P. 1206 In analyzing these criteria in the context of the in- - stant matter, we find that it was an abuse of discretion to allow Myers’ testimony in under these guidelines. The testimony of a professional gambler and a bookie convicted six or seven times, who was unquestionably on the other side of the law from the accused, is not highly convincing. 27 Reasons for Granting Writ Furthermore, if time had been allowed Davis to prepare properly, it is quite likely that this teetionony’ could have been strongly discredited. As to the second criteria, Myers’ testimony was recent enough not to be objectionable. However, we do “not believe that identity, motive or intent were really ma- terial issues in this inquiry. See United States v. Ring, 513 F.2d 1001 (6th Cir. 1975). Davis flatly denied accepting bribes in all cases but one where he accepted the money in order to have evidence against those at- tempting to bribe him but returned it the next day. If the jury finds that Davis performed the acts and made the statements he is alleged to have made, intent is not a material issue but would be inferred from those actions. Furthermore, the manner in which this testi- mony was introduced, through a surprise witness, was highly prejudicial to the defendant’s rights. Unfair prejudice is borne out by the insurmountable and impossible task of defending against it as related at length above. Having been prevented from learning of the incident by the selective tactics of the United States Attorney and being denied the opportunity to properly prepare and defend against it by the trial judge, Petitioner was clearly overwhelmed by the surprise and inability to counter in any way. As stated repeatedly above, Peti- tioner was required to defend against a seventh charge under Count II with no prior notice and with no oppor- tunity to prepare for any defense which he may have had after investigation. Petitioner was given a month to prepare for six of the charges and less than an hour for the seventh. Unfair prejudice should be apparent. 28 Reasons for Granting Writ In light of the above, it is clear that the admission of Myers’ testimony was a violation of Rules 403 and 404 (b) and that both the admission of Myers’ testimony and the failure to allow Petitioner sufficient time to in- vestigate and defend against the allegations made by Myers were abuses of discretion. E. The Courts Below Erred in Denying Petitioner's Motion for Judgment of Acquittal Petitioner made timely motions for judgment of acquittal both after the close of the Government’s case and after the verdict. The trial judge denied both. Petitioner is well aware that the method of review on this issue is to evaluate the evidence in the light most favorable to the Government, but the standard still re- mains that a verdict in a criminal case shall be sustained only where there is relevant evidence from which a jury could properly find or infer beyond a reasonable doubt that the accused is guilty. American Tobacco Company v. United States, 328 U.S. 781 (1946). In this case the evidence against the Petitioner came from sources which were of the most suspect and tainted variety. Witnesses James Horvath and Dale Sedeshe were convicted criminals and had been extended immunity from their complicity in the incidents to.which they testi- fied. Jack Arnold, a confederate of Horvath and Sedeshe, was likewise granted immunity from prosecution. Isaac Hawkins was another convicted criminal whose entire testimony was so rife with inconsistencies and un- oe 29 Reasons for Granting Writ reasonableness that no one could possibly believe the mat- ters involving Petitioner. He was protected from prosecu- tion by the statute of limitations. Similarly, Shermont Bowser was protected by the running of the statute of limitations. Although he admitted getting all the money from the victim in Para- graph 3 of Count II and created the whole wrongful act, nevertheless, he was still employed by the County of Dauphin in his same capacity at the Prison—a circum- stance casting considerable doubt upon the bona fides of his story. Overall, the Government’s primary witnesses were all personally interested in the incidents charged, whether as principals with Petitioner or closely associated with the principals. None were objective; all were from the other side of the system that Petitioner was engaged to enforce as a prison warden. Each had an obvious hostility toward and bias against Petitioner. To all of this was added the prejudicial testimony of Charles Myers having the effect of an additional charge for which no defense was allowed. . Petitioner contends that an unbiased review of the evidence adduced at the trial wil! show that the accusa- tions made against him are unbelievable. The verdict should not be allowed to stand on such incredible as- sertions. Reasons for Granting Writ CONCLUSION For the foregoing reasons, this petition for a writ of certiorari should be granted. Respectfully submitted, Richard C. Snelbaker, Attorney for Petitioner O62 6 Ce ee Sh a Se OS ee ee 1A Opinion, U. S. Court of Appeals APPENDIX I UNITED STATES COURT OF APPEALS For the Third Circuit No. 77-2263 UNITED STATES OF AMERICA v. DAVIS, RICHARD A., Appellant (D.C. Crim. No. 77-71) On Appeal From the United States District Court for the Middle District of Pennsylvania Argued March 28, 1978 BEFORE: ALDISERT, GIBBONS, HIGGENBOTHAM, Circuit Judges Richard C. Snelbaker, Snelbaker, McCaleb & Elicker Attorneys for Appellant 44 West Main Street Mechanicsburg, Pa. 17055 2A Opinion, U. S. Court of Appeals S. John Cottone, United States Attorney David Dart Queen, Special Assistant United States Atty. Attorneys for Appellee Federal Building 228 Walnut Street P.O. Box 793 Harrisburg, Pa. 17108 OPINION OF THE COURT (Filed May 24, 1978) G1BBons, Circuit Judge Richard A. Davis, former warden of the Dauphin County Prison in Harrisburg, Pa., appeals from the judg- ment of sentence imposed following his conviction in a jury trial for a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).’ The indictment on which he was tried charged that in numerous instances he solicited or accepted bribes “as consideration for a deci- sion, opinion, recommendation, vote and exercise of dis- cretion as the Warden,” contrary to 18 P.S. §4701 (a). Prior to trial, Davis moved for the dismissal of the in- ' Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, tit. IX, 84 Stat. 941 (codified in 18 U.S.C. §1961). 218 P.S. §4701(a): ; Offenses defined.—A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: a OI RD Eat neal a il i * 3A Opinion, U. S. Court of Appeals dictment both as time-barred and as failing to aver suf- ficient facts to give him notice of the charges against him. This motion was denied, the case was tried, and a ver- dict of guilty was returned. On appeal, Davis makes several contentions. I. THE TIME BAR RICO prohibits a person from engaging in a “pattern racketeering activity.” 18 U.S.C. §1962(c). ‘“Racketeer- ing activity” is defined, for purposes of this case, as bribery or extortion “which is chargeable under State law and punishable for more than one year.” 18 U.S.C. §1961(1) (A). Davis contends that prosecution for all the acts of bribery which the government charged and proved was barred by the relevant Pennsylvania statute of limitations. Because he contends that in RICO Congress intended to borrow state statutes of limitations for the predicate state offenses, Davis urges us to read the words “chargeable under State law” to mean “presently charge- able under State law.”” In United States v. Forsythe, 560 (1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party of- ficial or voter by the recipient ; (2) any benefits as consideration for the deci- sion, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding ; or (3) any benefit as consideration for a violation of a known legal duty as public servant or party of- ficial. Prior to June 6, 1973, a comparable statute was codified in 18 P.S. §4303. 4A Opinion, U. S. Court of Appeals F.2d 1127, 1134 (3d Cir. 1977), we held that the govern- ing statute of limitations is found, not in state law, but in 18 U.S.C. §3282. Davis argues that Forsythe was incorrectly decided, but that in any event it did not explicitly reject a refine- ment of his argument which we should now accept. That refinement is that the word “chargeable’’ does more than refer to state statutes of limitations;\it defines the federal offense. An offense, in other words\that is not ‘“chgtge- able under State law’”’ is not indictablAunder R It is true that Forsythe did not in so words pass on this more refined argument, but we think it rejected it implicitly. The holding in Forsythe was that Congress in- tended to permit federal indictment within the time speci- fied in §3282 for offenses which, when committed, were “chargeable under State law and punishable for more than one year.”” The last-quoted words were meant to limit RICO to serious offenses, offenses which in many but not all jurisdictions would be called felonies. We now make explicit what was implicit in Forsythe: the words ‘“‘chargeable under State law”’ in §1961 (1) (A) mean “‘chargeable under State law at the time the offense was committed.”” Davis, therefore, has no ground for ob- jecting to the timeliness of the indictment. We note, fur- thermore, that in this case three of the five acts of bribery which the government proved took place within the ap- plicable state statute of limitations. Three acts of bribery make a pattern of racketeering activity. The relevant dates show that the pattern continued until well within even the state limitations. 18 P.S. §108. For this addi- tional reason, the indictment against Davis was timely re- turned. 5A Opinion, U. S. Court of Appeals Il. VAGUENESS Davis’s next argument is that the indictment did not give him fair warning of the offense with which he was charged. He acknowledges that it listed bribes in specific amounts from named individuals at designated times and places. But he claims that it failed to inform him of what precisely he was alleged to have done in return for each bribe. The indictment, which adopted almost verbatim the wording of 18 P.S. §4701 (a) (1), charged that each bribe was received “‘as consideration for a decision, opin- ion, recommendation, vote and exercise of discretion.” The short answer to Davis’s argument is that the gravamen of the offense defined in §4701 is the solicita- tion or acceptance of a bribe, not the delivery of its quid pro quo. In an analogous case we have held: The essence of the crime here charged is the receiving of the money, not the quid pro quo received or prom- ised for that money, and where the statutes use the disjunctive io describe the alternate means of com- mitting the same statutory offense and only one crime is charged, the means of commission are permissible. United States v. Laverick, 348 F.2d 708, 714 (3d Cir. 1965) (citation omitted) . The government’s position on appeal is that, because Davis did not object to the charge quoted in the margin,” he cannot now contend that the indictment should have specified the guid pro quo. We note that Davis did chal- lenge the sufficiency of the indictment in a pretrial motion. * The court charged: In Count II it is not necessary for the government to show that the Defendant had the authority to assist 6A Opinion, U. S. Court of Appeals For that reason, we do not rest our affirmance on Fed. R. Crim. P. 30. We hold instead that the indictment was sufficiently specific and that the charge was correct. Ill. EVIDENCE OF OTHER CRIMES In addition, Davis urges that the trial judge erred when he permitted witnesses Sedeshe and Myers to testify concerning other crimes of a similar nature. We have re- cently reaffirmed the importance of avoiding the undue prejudice which arises from the admission of evidence con- cerning prior crimes which has little probative value for the issues being tried. See United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). In this case, however, the tes- timony of Sedeshe and Myers was relevant to Davis’s mo- tive or intent in accepting the money tendered. The evi- dence was, therefore, admissible under Fed. R. Ev. 404 (b). IV. MOTION FOR JUDGMENT OF ACQUITTAL Davis’s final contention is that his motion for a judg- ment of acquittal should have been granted. In light of the record, this contention is frivolous. V. CONCLUSION The judgment of the district court will be affirmed. inmates in securing special favors, nor need the govern- ment show that the Defendant did anything at all to | assist the inmates. The issue is not whether the De- fendant successfully aided the inmates, but whether he agreed to accept money from two or more of the per- sons named out of the five, who expected that he would provide assistance in return for the money. App. 812. — te. 7A Concurring Opinion ALDISERT, Circuit Judge, concurring. I join in Parts 11-V of the majority opinion and con- cur in the result reached in Part I. I agree that at the time of the original indictment on June 1, 1977 and the ‘superseding indictment on July 13, 1977, at least three incidents of bribery constituted acts “chargeable under State law and punishable by imprisonment for more than one year”. 18 U.S.C. §1961(1) (A). And with the majority I agree that these acts constitute a pattern of racketeering activity, sufficient to sustain a conviction un- der the indictment. I part company with my brothers of the majority on a philosophical note only, a note that does not affect the outcome of our decision, but nevertheless reflects an im- portant difference in interpreting a federal criminal stat- ute widely used by the Department of Justice. I would hold that the acts of bribery occurring in 1972 and 1974" should not have been considered as “‘racketeering activity” under a 1977 federal indictment based on §1961 (1) (A) because these acts were no longer chargeable and punish- able under Pennsylvania law. Under the federal statutory scheme, the essential ele- ments of a racketeering offense require an analysis of both federal and state law. Thus, a pattern of racketeering is *The superseding indictment originally alleged an additional incident of bribery, occurring in 1970. Because the government’s witness did not offer sufficient testimony regarding this alleged act, the government voluntarily withdrew this portion of the indictment at trial. i ll 8A Concurring Opinion defined as “‘at least two acts of racketeering activity’, 18 U.S.C. §1961 (5), and racketeering activity is defined (for the purposes of this case) as “any act or threat in- volving . . . bribery . . . which is chargeable under State law and punishable by imprisonment for mc 2 than one year....”” 18 U.S.C. §1961 (1) (A). The indictment alleged that the acts were violations of the Pennsylvania crime of bribery, proscribed in 18 P.S. §4303 (prior to June 6, 1973), and 18 PS. §4701 (a). By the provisions of 19 P.S. §211, prosecution of this state crime is barred after the passing of two years from the date of the commission of the alleged act. Nevertheless, Count II of the indictment averred acts occurring on or about May 3, 1972, and November 22, 1974. Clearly, even if “chargeable’’ under Pennsylvania law, these of- fenses were not “punishable” in 1977, at the time of the federal indictment, because of the interposition of the State statute of limitations. Accordingly, I would hold that even applying the federal statute of iimitations, United States v. Forsythe, 550 F.2d 1127 (3d Cir. 1977), the essential ingredients of a federal offense were lacking. It is conceded that bribery of a state official is not a discrete offense under federal criminal statutes. It is equally clear to me that since the federal definitional stat- ute requires that the racketeering offense be both charge- able and punishable under the state law, the government could not, and did not, prove all the elements necessary under the federal statute. It was a simple case of legal impossibility of performance.’ 2United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973), provides guidance in such a situation: 9A Concurring Opinion Although proper judicial interpretation of any federal statute is always important, proper judicial interpretation of a criminal staiute is critical. The maxim nullum crimen sine lege, nulla poena sine lege reminds us that the courts may not punish conduct as criminal unless that conduct has transgressed the clear, plain, or fair meaning of the defined offense. In the federal courts, this means a congressionally defined offense, because there is no fed- eral common law of crimes. Nevertheless, an interesting notion is volunteered here that bribery activities which occurred in 1972 and 1974 can still fall within the congressional definition of rack- eteering in 1977, by declaring judicially that “the words ‘chargeable under State law’ in §1961(1) (A) mean Legal impossibility is said to oceur where the in- tended acts, even if completed, would not amount to acrime.... ‘‘It is commonplace that federal courts are courts of limited jurisdiction, and that there are no common law offenses against the United States. ‘The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that should have jurisdiction of the of- fense.’ ... ‘It is axiomatic that statutes creating and defining crimes cannot be extended by intend- ment, and that no act, however wrongful, can be pun- ished under such a statute unless clearly within its terms.’’’ ... We distinguish between the defense of faetual impossibility, which is not involved here, and legal impossibility, which is. 482 F.2d at 188-90 (citations omitted). See United States v. Frumento, 563 F.2d 1083, 1096-97 (3d Cir. 1977) (Aldi- sert, J., dissenting). 10A Concurring Opinion ‘chargeable under State law at the time the offense was committed.’”” (Majority Opinion at 3). This is not statutory interpretation; it is statutory construction in the pristine fabricating sense. It is a judicial, not legislative, definition of criminal activity, a genre of statutory inter- pretation outlawed by a host of Supreme Court decisions. See, e.g., Huddleston v. United States, 415 U.S. 814, 831 (1974). This semantic excursion ignores the precise language Congress utilized in §1961(1) (A)., to-wit, “any act or threat involving . . . bribery . . . which is chargeable under State law ....” (Emphasis added). The present tense of the copulative verb “is” was used. The use of the present tense indicates that this provision is to apply only to those acts chargeable and punishable at the time of the indict- ment. Had Congress intended otherwise it could have just as easily added ‘was or has been”; indeed, Congress could have used the words the majority has added to the statute: “is chargeable under State law at the time the of- fense was committed.” But Congress did not add these words, and we cannot. We cannot, because to do so is to run counter to a basic tenet of interpretation of penal stat- utes best evidenced by Mr. Justice Reed’s statement in United States v. Bramblett, 348 U.S. 503, 509 (1954): “That criminal statutes are to be construed strictly is a proposition which calls for the citation of no authority.” III. Strict interpretation of a penal statute, of course, can- not be applied in vacuo; it cannot be utilized to thwart clearly expressed statutory text, or, in the event of am- biguity, the legislative purpose expressed in the statute or Te oe ae 11A Concurring Opinion its legislative history. The reasoning and policy considera- tions guiding the interpretation of ambiguous statutory language were set out by Mr. Justice Marshall in United States v. Bass, 404 U.S. 336 (1971): [A]s we have recently reaffirmed, “ambiguity con- - cerning the ambit of criminal statutes should be re- solved in favor of lenity.” . . . In various ways over the years, we have stated that ‘““when choice has to be made between two readings of what conduct Con- gress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Con- gress should have spoken in language that is clear and definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 318, 321-322 (1952). This principle is founded on two policies that have long been part of our tradition. First, ‘a fair warning should be given to the world in language that the common world will understand of what the law in- tends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U.S. 26, 27 (1931) (Holmes, J.) See also United States v. Cardiff, 344 U.S. 174 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies “the instinctive distaste against men lan- guishing in prison unless the lawmaker has clearly said they should.’”’ H. Friendly, Mr. Justice Frank- furter and the Reading of Statutes, in Benchmarks 196, 209 (1967). 12A Concurring Opinion 404 U.S. at 347-48 (1971) (footnote and citations omitted) . I have indicated that I find no ambiguity in the present tense descriptive language of those state offenses incorporated in §1961(1) (A) as federal offenses. As- suming without conceding that there is ambiguity, my examination of the legislative history compel no contrary result. A. The Racketeer Influenced and Corrupt Organizations statute (RICO) had as its genesis the Senate’s Organized Crime Control Bill, introduced in early 1969. “‘Racketeer- ing activity’’ was originally defined, in relevant part, as “any act involving the danger of violence to life, limb, or property indictable under State or Federal law and punish- able by imprisonment for more than one year.” The Jus- tice Department, however, took the position that the sug- gested language was ‘“‘too broad and would result in a large number of unintended applications, as well as tend- ing toward a complete federalization of criminal justice.’” It suggested that §1961(1) (A) be redefined as follows: “Any act or threat involving murder, kidnapping, gam- bling, arson, robbery, bribery, extortion, usury, or deal- ing in narcotic drugs, marihuana or other dangerous drugs, which is indictable under State law and punishable for * Letter from Richard G. Kleindiest, Deputy Attorney ) General, to Senator John L. McClellan, Chairman of the Subcommittee on Criminal Laws and Procedure, reprinted in Hearings on S. 30 before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judici- ary 91st Cong., Ist Sess. p. 405. ee ee ee ee On 13A Concurring Opinion more than one year.” The Department stated, “It is felt that by thus narrowing the definition of the class of ap- plicable state crimes in terms of their generic meaning the definition of ‘racketeering activity’ contained in Section 1961 (1) (A) will be both broad enough to include most _State statutes customarily invoked against organized crime yet narrow enough to be constitutional. United Siates v. Nardello, 393 U.S. 286 (1969) .” The Senate accepted the gist of the Justice Depart- ment’s recommendations in its final passage of the crime control bill: §1961(1). “[R]Jacketeering activity’’ means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or deal- ing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by im- prisonment for more than one year. S. Rep. No. 91-617, 91st Cong., Ist Sess. 21 (1969). The bill was subsequently favorably considered in hearings be- fore Sub-Committee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., and, with minor amend- ments, was eventually enacted as the Organized Crime Control Act of 1970, P.L. 91-452, 84 Stat. 922. B. From this legislative history, | draw several signifi- cant conclusions. The Justice Department’s request that the statutory definition not be “too broad” was respected: state crimes were defined in “terms of their generic mean- ing” and federal crimes were defined with specificity in §1961(1) (B). The Senate Committee report noted that 14A C ne Opini “(t]he state offenses are included by generic designation,”’ Senate Report, supra, at 158, and the House Committee stated that “ ‘[r]acketeering activity’ is defined in terms of specific State and Federal criminal statutes”. and that “State offenses are included by generic designation.” 1970 U.S. Cope Conc. & ADMIN. News, 91st Cong., 2d Sess., pp. 4010, 4032. Congress therefore can be said to have heeded the Justice Department’s admonition to avoid “‘a large number of unintended applications” and “a complete federaliza- tion of criminal justice.” Therefore §904 of Title IX of P.L. 91-452, which provided that “[t]he provisions of this title shall be liberally construed to effectuate its remedial purpose,” must be read in light of the language of the Statute and the legislative history. And in viewing the legislative purpose, I detect nothing that precludes the application of the rule of narrow construction of penal statutes. IV. In sum, I find the statutory language to be clear. For a federal offense to exist, by definition there must also be a state offense. There was no federal offense here, be- cause the acts had to be “chargeable and punishable” un- der state law. “If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it plainly ex- . pressed.”” Reuther v. Trustees of Trucking Employees, — F.2d — (3d Cir. No. 77-1986, 1978), quoting Lord Atkinson in Vacher & Sons, Ltd. v. London Society of Compositers, [1913] A.C. 107, 121-22 (House of Lords) . “If the language be clear it is conclusive. There can be ON 66 ester eats Te Ee oe 15A Concurring Opinion no construction where there is nothing to construe.” United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868). And even assuming that there is ambiguity, we must resort to the principle that “ambiguity concerning the _ambit of criminal statutes should be resolved in favor of lenity.”” United States v. Bass, supra. In view of the statute’s text and its history, especially the congressional acquiescence in the Justice Department’s request to nar- row the definition of state offenses, the application of the traditional principle of strict construction of this penal statute effectuates, rather than defeats, the obvious legis- lative purpose. For all these reasons, | would hold that where one has been acquitted of a state offense, see, e.g., United States v. Frumento, supra, (Aldisert, J., dissenting), or where, as here, prosecution of a state offense is outlawed by a state statute of limitations at the time of the federal indictment, there is no generic state crime “chargeable and punishable under State law,”’ and there cannot be a fed- eral offense under §1961 (1) (A). A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit. 16A Order APPENDIX II UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Criminal No. 77-71-1 (Judge Muir) UNITED STATES OF AMERICA vs. RICHARD A. DAVIS ORDER August 2, 1977 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On the first day of June, 1977, a federal grand jury indicted Davis. On July 13, 1977 the federal grand jury filed a superseding indictment against Davis. Count Il of that indictment charged him with violating 18 U.S.C.A. §§1961, 1962(c) and 1963 by committing six acts be- tween the 15th day of July 15, 1970, and June 8, 1976 which allegedly violated the Act of June 24, 1939, P.L. 872 §303, 18 P.S. §4303 and the Act of December 6, 1972, P.L. ——, No. 334, §1, 18 Pa. C.S.A. §4701 while te ET EN a 17A Order he was an employee of and associated with an enterprise engaged in and affecting interstate commerce; that is, the Warden of the Dauphin County Prison, Harrisburg, Penn- sylvania. On July 25, 1977, in compliance with this Court’s Order No. 2 of July 14, 1977, Davis filed a mo- tion to dismiss Count II of the indictment accompanied by ‘a brief. On July 29, 1977, the United States filed a re- sponsive brief in opposition to the motion. Davis’ con- tentions that Count II of the indictment should be dis- missed will be dealt with seriatim. First, Davis contends that Count II of the indictment should be dismissed because three of the six alleged in- cidents of racketeering are not chargeable offenses under state law punishable by imprisonment for more than one year because he could not now be tried for such offenses in the courts of Pennsylvania since the statute of limita- tions of the bribery statutes, 18 P.S. §4303 and 18 Pa. C.S.A. §4701 have expired. Racketeering activity for the purposes of 18 U.S.C.A. §1961 et seq. is defined in relevant part as “any act or threat involving murder, kid- napping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprison- ment for more than one year.” 18 U.S.C.A. §1961 (1) (A). State law is used in the racketeering statute to define a federal offense. An offense which when com- mitted would have been indictable under Pennsylvania law is within the statutory definition. Otherwise, state statutes of limitations would control the federal statute of limitations specifically set forth by Congress to apply to the racketeering statute. See 18 U.S.C.A. §1961 (5); United States vs. Fineman, Cr. 77-36 (E.D. Pa. 1977). 18A Order Similar arguments have been raised against prosecu- tions pursuant to 18 U.S.C.A. §1952 and §1955 which prohibit travelling in interstate commerce to carry out acts illegal under state law. In United States of America vs. Revel, 493 F.2d 1 (5th Cir. 1974), cert. denied 421 U.S. 909 (1975), the Defendant was indicted for a viola- tion of 18 US.C.A. §1955. The gambling laws of Alabama were used to define the federal offense. De- fendant contended that the state statute of limitations had expired before the federal indictment had been returned. The Court rejected that argument because the reference to state law in the statute was for the purpose of defining the conduct prohibited. See United States vs. Cerone, 452 F.2d 274, 286-87 (7th Cir. 1971), cert. denied, 405 U.S. 964 (1972); United States vs. Karigiannis, 430 F.2d 148, 150 (7th Cir. 1970) (Justice Clark sitting by designa- tion). If Congress had intended the state statute of limita- tions to apply to the racketeering statute, it could have so stated. Davis has provided no authority to support his contention. In the light of the foregoing, the Defend- ant’s motion to dismiss the indictment because two of the offenses charged in Count II did not occur within the state statute of limitations will be denied. Second, Davis contends that several of the acts charged in Count II do not fall within the federal statute of limitations. See 18 U.S.C.A. §3282 which established a five-year period of limitations for all .non-capital of- fenses. That statute is a general statute of limitations which does not apply when Congress sets forth a specific statute of limitation for an offense. The Racketeer In- fluenced and Corrupt Organization Statute contains such — a ee eet eet Me as i a i ae lala 19A Order a specific limitation. 18 U.S.C.A. $1961 (5) states that a pattern of racketeering activity requires at least two acts of racketeering activity, one of which occurred after the effective date of the chapter and the last of which occurred within 10 years excluding any period of im- prisonment after the commission of a prior act of rack- eteering activity. The acts alleged in Count II of Davis’ indictment fall within the provisions of this section. Con- sequently Davis’ motion to dismiss Count II because it is barred by the federal statute of limitations will be denied. Third, Davis contends that Count II of the indictment should be dismissed because it does not aver the factual basis of the conclusion that he agreed to make or perform “a decision, opinion, recommendation, vote and exercise of discretion” as the Warden of the Dauphin County Pris- on, in return for money, thereby failing to notify him of the nature of the charges which he is expected to defend against and denying him the opportunity properly to pre- pare for his defense. The Supreme Court of the United States in Hamling vs. United States, 418 U.S, 87, 117 (1974), set forth the following standard by which the adequacy of an indictment is to be measured. “Our prior cases indicate that an indictment is sufficient if it first contains the elements of the of- fense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. (Citations omitted) It is generally sufficient that an indictment set forth the offense and in the words of the statute itself as long as ‘those words of them- 20A Order selves fully, directly, and expressly without any un- certainty or ambiguity set forth ali the elements necessary to constitute the offense intended to be punished. (Citations omitted) Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense coming under the general description with which he is charged.’ (Citation omitted.) Count II of the indictment possesses all of the ele- ments required to establish a violation of 18 U.S.C.A. $§$1961 et seq. Count II of the indictment sets forth six incidents in which it is charged that Davis did offer, con- fer and agree to confer upon and solicit, accept and agree to acoept from various individuals named therein sums of money for a decision, opinion or recommendation, vote and exercise of discretion as the Warden of the Dauphin County Prison in violation of either 18 P.S. §4303 or 18 Pa. C.S.A. §4701(a). Each occurrence contains the date upon which it allegedly took place, the individual from whom Davis supposedly accepted and solicited the money and the amount of the money which he was to re- ceive. The language. used to describe the conduct in which Davis allegedly engaged essentially tracks 18 Pa. C.S.A. §4701 (a). -Because Count II does inform Davis that he is accused of accepting bribes on particular dates, . he does ‘know whati;he has to meet at trial. It would be a better practice:on the part of the United States At- torney to have set forth the acts which Davis was to per- form i return fee the money. But failure to do so does not violate the Constitution. Davis does not contend that ee ee —— 21A Order Count II of the indictment lacks clarity and is not plain or concise. Any possibility of prejudice or any burden which Davis may bear because he would allegedly have to anticipate the nature of the offense with which he is charged can be cured by a Bill of Particulars which Davis has filed and upon which this Court has ruled. The Court has granted those portions of Davis’ request for a Bill of Particulars which in its view are necessary to apprise him of the charges against him with sufficient precision to enable him to prepare his defense and to avoid surprise. United States vs. Radetsky, 535 F.2d 556 (10th Cir. 1976), United States vs. Burton, 526 F.2d 884 (5th Cir. 1976) , rehearing denied, 529 F.2d 523. NOW, THEREFORE, IT IS ORDEDED THAT: Davis’ motion to dismiss the superseding indictment is denied. Muir Muir, U.S. District Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1203%3A1. Public record. Not legal advice.