Petition — Aleman v. United States
Supreme Court brief1980
Ask Donna
What actually matters in this document.
Text
In the .
Supreme Court of the United States
Oocroser TERM, 1979
HARRY ALEMAN and LEONARD FORESTA,
Petitioners,
vB.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
eet
DONALD R. HARRIS JULIUS LUCIUS ECHELES
CAROL R. THIGPEN 35 East Wacker Drive
| MICHAEL B. BROHMAN Room 3500
JENNER & BLOCK Chicago, IL 60601
One IBM Plaza Attorney for
Chicago, IL 60611 LEONARD ForEsTA
Attorneys for
Harry ALEMAN
ill ehaieeteieineneemeieiemmemmenineeniamnesetnenieteaneeeetetiaee eee
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
TABLE OF CONTENTS
PAGE
sgt RH LK IR A Sai ogee ae Oe Sathelbeor A ~
Big ie Ree tains a es CREED rd SAC 2
os ee AA ITE SEES 2
Constitutional Provisions and Relevant Statutes ........ 3
I a iciccaabe'tpipeqenameanace 4
Reasons for Granting the Writ 8
I. This Court Should Resolve The Important RICO
Issues Presented By The Instant Case Since
There Is A Direct Conflict Among The Circuits
And The Statutory Interpretation Adopted By
The Court Below Violates Fundamental Rules
Of Construction ................ SOMA
Introduction _.......... a
A. This Court Should Resolve The Conflict
Among The Circuits In The Interpretation
OF SA0G8: Soc stinws 10
B. This Court Should Limit Application Of
Section 1962 To Racketeering Activity In
The Conduct Of Legitimate Businesses,
Consistent With Its Legislative History ..... 15
©. If RICO Is Not Limited To Cases Involving
Legitimate Enterprises, The Statute Should
Be Declared Unconstitutional .................... 18
D. Due Process Principles, If Not Double
Jeopardy Pe Se, Require Review Of Peti-
tioners’ Multiple Punishment Based On The
RI I hoo cca tacescasercctbensverncensnece 21
ii
PAGE
II. This Court Should Review The Refusal To Sever
Counts For Trial, Or Alternatively, To Elimi-
nate Evidence Of Prejudicial Surplusage From
The Jury’s Consideration _................--.-..0....-..-. 22
SEITE TENE AER Ci prinphaiats tasdiiavies tains 24
AUTHORITIES CITED
Cases
Abbate v. United States, 359 U.S. 187 (1959) _.......... 21
Ashe v. Swenson, 397 U.S. 436 (1970) 0000. 21
Bartkus v. Illinois, 359 U.S. 121 (1959) 00 21
Bolling v. Sharpe, 347 U.S. 497 (1954) 20. 20
Bruton v. United States, 391 U.S. 123 (1968) .............. 22
Connally v. General Construction Company, 269 U.S.
ER GES Se rk SRE OM ee A Rea Cer 18
Elkins v. United States, 364 U.S. 206 (1960) ............ 21
Holy Trinity Church v. United ns 143 U.S. 457
ES REARS 2 SSA RRR ME at eM Ue I RU 17
Tannelli v. United States, 420 U.S. 770 (1975) .............. 9, 14
Lanzetta v. New Jersey, 306 U.S. 451 (1939) 0000000... 19
Michelson v. United States, 335 U.S. 469 (1948) .......... 23
Papachristou v. City of J re 405 U.S. 156.
Bc (be: SEARS CONDO ea Se MN See. SIN RN FE 19, 20
Philbrook v. Glodgett, 421 U.S. 707 (1975) wad 17
Rewis v. United States, 401 U.S. 808 (1971)
’ Rios v. United States, 364 U.S. 253 (1960) 0.0... 22
Smith v. Goguen, 415 U.S. 566 (1974) occ. cccccccccccccssee 19, 20
PAGE
United States v. Altese, 542 F.2d 104 (2d Cir. 1976),
cert. denied sub nom. Napoli v. United States, 429
UEB SOG CUTTY nineties ice 11, 15
United States v. Baranski, 484 F.2d 556 (7th Cir. 1973) 18
United States v. Bass, 404 U.S. 336 (1971) ................ 13, 17
United States v. Caémpanale, 518 F.2d 352 (9th Cir.
1975), cert. denied, 423 U.S. 1050 (1976) ................ 11
United States v. Campos-Serrano, 404 U.S. 293 (1971) 17
United States v. Cappetto, 502 F.2d 1351 (7th Cir.
1974), cert. denied, 420 U.S. 925 (1975) ..............-.--- 1i
United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979) 10
United States v. Elliott, 571 F.2d 880 (5th Cir.), cert.
denied sub nom. Delph v. United States, 439 U.S.
DB (UGTS) -.aaccncnccssnanineronsnensesenantenennsectsnsiinjeantuintoteapahtnjusodese 10
United States v. Falk, 479 F.2d 616 (7th Cir. 1973) ... 20
United States v. Gradwell, 243 U.S. 476 (1917) ............ 13
United States v. Grzywacz, 603 F.2d 682 (7th Cir.
QTY aca iicnscinia ici leclitentisiantidadbineretenictntn 6, 11, 14-15
United States v. Hawes, 592 F.2d 472 (5th Cir. 1976) 11
United States v. Insco, 496 F.2d 204 (5th Cir. 1974) ... 18
United States v. Mandel, 415 F.Supp. 997 (D.Md.
IN ni hoa en eiL patie daicniiencacetenceimedeenonetntit tote 14, 17-15
United States v. Moeller, 402 F.Supp. 49 (D.Conn
STD oasessenasissseeerenvesecineiebamsopionensneestaibbiopealpinhatnertabsfouste 13
United States v. Morris, 532 F.2d 436 (5th Cir. 1976) 11
United States v. Parness, 503 F.2d 430 (2d Cir. 1974),
cert. denied, 419 U.S. 1105 (1975) -............---ececceeeeeeees 11
United States v. Rone, 598 F.2d 564 (9th Cir. 1979) ..11, 14
iv
PAGE
United States v. Sutton, 605 F.2d 260 (6th Cir. 1979) ..7, 11
United States v. Swiderski, 593 F.2d 1246 (D.C. Cir.
1979), cert. denied, 99 S.Ct. 2055 (1979) 0... 11
United States v. Universal C.L'T. Credit Corp., 344
cs | SRE eR eee one ee AD 19
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................... 20
STATUTES AND RULES
ty Lee» Seen aiieaibetes Ui74o Seek on eae ieee ete 5
BR C3 NM aa aA SS sien, 5, 22
BO eae SR it aes eh as 5)
TE NRT I, adn hciieity ee oe 5
Bie Ce CRD i i ee ha eal Bs)
a ee SEER) cr ee > 5, 22
RE oe ne a ee eee 2
SU EE prt coe ge hos ih adn fm Bletin 14
E58 SEO CEIR Da ii Ree cetera 4, 8,10
RR Ms BAPE oa 4,12,18
BAF EG. SUOLEG) coca sssicesses ten ee 4,8
Be RENAL: IE. Mairristicgebecjetescs an bhstnns. 2, 4, 10, 12, 15, 17, 20
RPEN DONONO? > oka a a 3, 4, 8, 14
IS UAC. F19GR(d) ss. a ete 3, 4
MR SUD ce a 4
tL Een pan ream emobe Meet we STE RS PD 4
eng IR RTT OD: 10 os We BN SATE MSS 20 .
Fifth Amendment, United States Constitution _........ 3, 20
Fourteenth Amendment, United States Constitution ....3, 20
¥
TREATISES AND ARTICLES
PAGE
116 Cong. Rec. at 602 .................-.-.---- = 16
116 Come. Bec. 35000 «..............—............. RMS RE Ae 16
116 Cong. Rec. 35304 .................... Sichiotmubiekate 16
ee a 16
House Report No. 91-1549, U.S.C. Cong. and Admin.
News, 91st Cong., Second Session (1970) ........... ieadehat 16.
Senate Committee on the Judiciary, Report on Organ-
ized Crime Control Act of 1969, S.Rep. No. 617, 91st
Cong., First Session, (1969) -....u....1...-.-..----n---0-0n-0 15
Atkinson, ‘‘Racketeer Influenced and Corrupt
Organizations,’’ 18 U.S.C. §§1961-68: Broadest of
the Federal Criminal Statutes, 69 J.Crim.L.&C. 1
VN 15
McClellan, The Organized Crime Act (8. 30) or Its
Critics; Which Threatens Civil Iaberties?, 46 Notre
Dame Lawyer 55 (1970) 22... 2.n nn. nnsnenccneseemennseeeoees 17
Comment, Organized Crime and the Infiltration of Legt-
timate Business-Civil Remedies for ‘‘Criminal Ac-
tivity,’’ 124 U.Pa.L.Rev. 192 (1975) 1... 18
Note, Coverage and Application of the Orgamized
Crime Control Act of 1970: The Anti-Racketeering
Statute in Operation, 53 Chi.-KentL.Rev. 498 (1977) 16
Wational Law Séarnal, Sept 17, 197, at 2, 19. ST
atau €
Iu the
Supreme Court of the Rnited States
Ocroser Term, 1979
No.
HARRY ALEMAN and LEONARD FO™ESTA,
Petitioners,
VB.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioners Harry Aleman and Leonard Foresta, Defen-
dants-Appellants in the court below, pray that a writ of
certiorari issue to review the judgment of the United States
Court of Appeals for the Seventh Circuit entered in this
case.
OPINION BELOW
The opinion of the Seventh Circuit, not yet reported, is
printed in Appendix 1. No opinion was rendered by the
District Court for the Northern District of Illinois.
JURISDICTION
The opinion and judgment of the Court of Appeals for
the Seventh Circuit were entered on October 30, 1979. The
court’s judgment is attached hereto as Appendix 2. This
Court’s order of November 21, 1979 extending the time for
filing a petition for writ of certiorari to and including De-
cember 28, 1979 is attached as Appendix 3.
The jurisdiction of this Court is invoked under 28 U.S.C.
§1254(1).
QUESTIONS PRESENTED
1. Can persons who commit three home robberies over
a fourteen month period constitute an ‘‘enterprise’’ under
the Racketeer Influenced and Corrupt Organizations Act
(18 U.S.C. §1962) even if no legitimate business is in-
volved and no infiltration of any business has occurred?
2. Can a holding that the -ommission of three robberies
is a violation of section 1962 be reconciled with the stat-
ute’s legislative history, with general principles of statu-
tory construction, and with this Court’s expressed concern
about altering sensitive federal-state relationships by
_ transforming state offenses into federal felonies?
3. If 18 U.S.C. §1962 can be construed to cover the
commission of three robberies where there is no in-
filtration of a legitimate business and no identifiable stan-
dards for determining which cases should be brought under
section 1962 and which under underlying sections of Title
18 or state criminal] law, is the statute unconstitutional
(a) for vagueness and overbreadth; or
(b) as a violation of petitioners’ right to equal protec-
tion under the laws?
3
4, Do the principles of due process and double jeopardy
foreclose imposition of multiple penalties for RICO viola-
tions and the underlying crimes?
5. Does refusal to sever counts charging transporting a
weapon after having been convicted of a felony require
reversal when the jury—despite an offer to stipulate to
the prior conviction—is informed that the conviction is
for the same underlying crime for which defendants are
on trial?
CONSTITUTIONAL PROVISIONS AND
RELEVANT STATUTES
The Fifth Amendment to the United States Constitution
provides in part:
‘‘No person shall... be deprived of life, liberty, or
property, without due process of law... .’’
The Fourteenth Amendment to the United States Con-
stitution provides in part:
‘‘No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws.’’
18 U.S.C. §1962(c) provides:
‘‘(¢) It shall be unlawful for any person employed
by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign com-
merce, to conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of unlaw-
ful debt.’’
18 U.S.C. §1962(d) provides:
‘*(d) It shall be unlawful for any. person to conspire
to violate any of the provisions of subsections (a), (b),
or (c) of this section.’’
4
18 U.S.C. §1963(a) provides:
‘*(a) Whoever violates any provision of section 1962
of this chapter shall be fined not more than $25,000 or
imprisoned not more than twenty years, or both, and
shall forfeit to the United States (1) any interest he
has acquired or maintained in violation of section 1962,
and (2) any interest in, security of, claim against, or
property or contractual right of any kind affording a
source of influence over, any enterprise which he has
established, operated, controlled, conducted, or partici-
pated in the conduct of, in violation of section 1962.’’
18 U.S.C. §1961 provides in part:
‘*(1) ‘Racketeering activity’ means (A) any act or
threat involving murder, kidnaping; gambling, arson,
robbery, bribery, extortion, or dealing in narcotic or
other dangerous drugs, which is chargeable under State
law and punishable by imprisonment for more than
one year....’’
* * *
‘*(4) ‘enterprise’ includes any individual, partner-
ship, corporation, association, or other legal entity,
and any union or group of individuals associated in
fact although not a legal entity;
(5) ‘pattern or racketeering activity’ requires at least
two acts of racketeering activity, one of which occurred
after the effective date of this chapter and the last of
which occurred within ten years (excluding any period
of imprisonment) after the commission of a prior act
of racketeering activity.)’’
STATEMENT OF THE CASE
Petitioner Aleman was convicted by a jury on one count
charging a substantive violation of the Racketeer Influenced
and Corrupt Organizations Act (‘‘RICO’’) (18 U.S.C.
$1962(c)), one count of conspiracy to violate the Act (18
U.S.C. §1962(d)), and one count of transporting stolen
goods in interstate commerce (18 U.S.C. §2314). Mr. Ale-
man was found not guilty of causing his co-defendant to
transport firearms in interstate commerce (18 U.S.C. §924
(b) and §2), and of causing his co-defendant to carry fire-
arms during the commission of a felony (18 U.S.C. §924(c)
(2) and §2).
Petitioner Foresta was convicted of the same three
charges as Mr. Aleman; additionally, he was found guilty
on counts charging transportation of a firearm in inter-
state commerce (18 U.S.C. §924(b)), carrying a firearm
during the commission of a felony (18 U.S.C. §924(c)(2)),
transporting a firearm in interstate commerce after having
| been convicted of a felony (18 U.S.C. §§922(g) and 924(a)),
and possession of a firearm in commerce after having been
convicted of a felony (18 U.S.C. §1202(a)(1)).
Mr. Aleman and Mr. Foresta were both sentenced to
twenty years on each of the racketeering counts, to be
served concurrently, and to ten years on the interstate
transportation of stolen goods count, to be served consecu-
tively. Additionally, Mr. Foresta was sentenced to con-
current terms of ten years and two years on the firearms
charges.
Three home robberies formed the basis for the racketeer-
ing charges in this case. The indictment charged that peti-
tioners,
‘‘being persons associated with an enterprise engaged
in and the activities of which affected interstate com-
merce, to wit, a group of individuals associated in fact
to plan and commit robberies, to carry away stolen
goods, and to divide among themselves the stolen goods
and all proceeds uerived therefrom, unlawfully, will-
fully and knowingly did conduct and participate, di-
rectly and indirectly in the conduct of such enterprises’
affairs through a pattern of racketeering activity, to
wit, the commission of robberies in Chicago, Illinois,
Oak Lawn, Illinois, and Indianapolis, Indiana.”’
é
As set forth in the opinion of the Seventh Circuit, the
government’s case against petitioners was based largely
on the testimony of Louis Almeida, concededly a profes-
sional criminal, who was named in the indictment as an
unindicted co-conspirator. (App. 1 at 3.) Almeida was
granted immunity by the government for his testimony that
Aleman and Foresta planned and carried out the three rob-
beries. Several victims of the robberies testified, but their
testimony was limited to identification of Almeida and
Foresta; the witness from the only robbery at which Ale-
man was alleged to have been present did not identify
Aleman as a participant.
In affirming petitioners’ convictions, the Seventh Circuit
held that the ‘‘broad language’’ of the racketeering act
was not limited to the infiltration of legitimate business
by criminal activity, but also could be used to ‘‘curb other
criminal activities when the acts are part of an illegal en-
terprise.’’ (App. 1 at 6.) The court stated that the Act
was not restricted to members of organized crime, adding
that the ‘‘pattern of racketeering’’ requirement was met
here by a showing of two acts of racketeering activity—in
this case the state crime of robbery. (App. 1 at 8.) The
court rejected petitioners’ contention that RICO should be
deemed void for vagueness if it is read to include illegiti-
mate businesses, stating that ‘‘being broad in scope is not
synonymous with being vague.’’ (App. 1 at 12.) Similarly,
the court rejected petitioners’ argument that RICO vio-
lated their right to equal protection because of the discre-
tion permitted the prosecutor to charge a RICO offense or
select only an underlying crime. (App. 1 at 12-13.)
In dissent, Judge Swygert agreed with petitioners’ view
of the term ‘‘enterprise’’ as used in the RICO statute, cit-
ing his extensive discussion in United States v. Grzywacz,
603 F.2d 682, 690 (7th Cir. 1979) :
7
“To urge, as the Government did in Greywacz, that a
police department is an ‘enterprise’ within the mean-
ing of the statute, although farfetched and impermis-
sible by any reasonable interpretation of the statute,
has some semblance of logic to it. Here, to maintain,
as the majority does, that the pattern of criminal activ-
ity engaged in by Aleman and his associates is an ‘en-
terprise’ within the meaning of the statute is to turn
logic on its head.’’ (App. 1 at 24.)
Judge Swygert noted that, to reach the majority’s conclu-
sion, ‘‘we are required to assume that the defendants were
infiltrating their own unlawful enterprise through a ‘pat-
tern of racketeering activity.”’’ (App. 1 at 24.) Judge
Swygert concluded that the recent Sixth Circuit opinion
in United States v. Sutton, 605 F.2d 260 (6th Cir. 1979),
correctly decides this very issue, offering an analysis that
is ‘‘irrefutable.’’ (App. 1 at 25.)
REASONS FOR GRANTING THE WRIT
I.
THIS COURT SHOULD RESOLVE THE IMPORTANT
RICO ISSUES PRESENTED BY THE INSTANT CASE
SINCE THERE IS A DIRECT CONFLICT AMONG THE
CIRCUITS AND THE STATUTORY INTERPRETA-
TION ADOPTED BY THE COURT BELOW VIOLATES
FUNDAMENTAL RULES OF CONSTRUCTION.
Introduction
The Racketeer Influenced and Corrupt Organizations Act,
passed nearly a decade ago, is one of the most onerous
penal statutes in the Federal Code. It not only provides
for criminal penalties of up to twenty years for substantive
violations, but it also provides for a possible twenty year
additional penalty for conspiracy to violate the Act, as well
as for civil forfeiture penalties. Additionally, a person
may—as in the present case—receive additional consecutive
sentences for underlying crimes which form the basis for
the RICO counts.
RICO makes it unlawful for persons ‘‘associated with
any enterprise .. . to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity.’’ 18 U.S.C.
§1962(c). ‘‘Racketeering activity’’ includes, inter alia,
robbery ; the commission of two or more acts of racketeer-
ing establishes a ‘‘pattern of racketeering activity.’’ 18
U.S.C. §1961(1), §1961(5). The principal issue in this case
is whether Aleman’s and Foresta’s involvement in three
robberies was an ‘‘enterprise’’ which was conducted
‘‘through a pattern of racketeering activity.’’
~
9
The term ‘‘enteprise’’ in section 1961 must be interpreted
to mean a legitimate business organization. To hold other-
wise, as did the court below, eliminates the requirement
that the prohibited ‘‘racketeering activity’’ relate to
‘‘the conduct of such enterprise’s affairs.’’ If robbery,
which is a defined ‘‘racketeering activity,’’ is also an ‘‘en-
terprise’’ under the statute, RJCO redundantly and incom-
prehensibly proscribes ‘‘any person . . . associated with
any [robbery]... [from] conduct[ing] or participat[ing],
directly or indirectly, in the conduct of such [robbery’s]
affairs through a pattern of [robbery].’’ If this coxstruc-
tion of RICO is deemed correct, the statute is void for
vagueness and for its denial to petitioners of equal pro-
tection.
There is a direct conflict among the lower federal courts
in the application of this increasingly-used criminal statute.
Even courts adopting an expansive view have recognized
that RICO has been carried far beyond its stated legisla-
tive purpose. Whether or not this Court ultimately adopts
the construction of RICO which petitioners (and the Sixth
Circuit) believe is mandated by common sense and legisla-
tive history, the issue is undeniably an important one which
must be addressed by this Court.*
If petitioners’ convictions can be upheld, there is virtual-
ly no limit to the widening web spun by RICO. To call
petitioners’ activities a ‘‘business’’—as the Seventh Circuit
did—stretches the definition of that word; to declare it an
‘‘enterprise’’ under RICO is patently absurd in light of the
statute’s language and legislative history. Not only does
the present case present this Court with one of the most ex-
treme examples of the use—or misuse—of RICO, but it
* Thus far, this Court has mentioned it only in dicta. See Iannelli
v. United States, 420 U.S. 770, 787, n.19 (1975).
10
also presents the important related question of pyramiding
of penalties; both petitioners were sentenced to consecutive
terms for RICO violations and for a crime underlying the
RICO counts—and petitioner Foresta had previously been
sentenced by a state court for one of the same robberies
forming the basis for the RICO charges. Thus, this case—
more than any yet decided—presents the sensitive problem
of federal-state relations, about which this Court has often
expressed concern.
The time has come for a definitive declaration by the
highest court of the land as to the reach of this highly con-
troversial statute. The opinion below presents the most far-
reaching interpretation imaginable since it would apply
RICO whenever two of the crimes listed in section 1961(1)
are committed within ten years of each other. (See Judge
Swygert’s dissent, App. 1 at 24.) This petition thus pro-
vides an ideal case for this Court to consider what, if any,
limitations should be placed on this important statute.
A.
This Court Should Resolve The Conflict Among The
Circuits On The Interpretation Of §1962.
The conflict among the circuits relating to the interpre-
tation and limitations of the RICO statute *.as resulted in
a lack of uniformity in the application of this important
and highly penal federal criminal statute.
In one of the more expansive readings of section 1962,
the Fifth Circuit in United States v. Elliott, 571 F.2d 880
(5th Cir.), cert. denied sub nom. Delph v. United States,
439 U.S. 953 (1978), held that a group of people who com-
mitted crimes including arson, murder, and truck high-
jackings constituted an ‘‘enterprise’’ under RICO. See also,
e.g., United States v. Diecidue, 603 F.2d 535 (Sth Cir. 1979) ;
11
United States v. Morris, 532 F.2d 436 (5th Cir. 1976) ;
United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).
"he Second and Ninth Circuits have also given RICO a
very broad application. United States v. Rone, 598 F.2d
564 (9th Cir. 1979), (RICO conviction upheld in a case in-
volving murder and extortion, but no legitimate busi-
ness); United States v. Altese, 542 F.2d 104 (2d Cir.
1976), cert. denied sub nom. Napoli v. United States, 429
U.S. 1039 (1977), (illegal gambling activities). See also
United States v. Campanale, 518 F.2d 352, 364 (9th Cir.
1975), cert. denied, 423 U.S. 1050 (1976) ; United States
v. Parness, 508 F.2d 430, 441-42 (2d Cir. 1974), cert. denied,
419 U.S. 1105 (1975).*
The Seventh Circuit has previously held that a criminal
‘‘enterprise’’ falls within the ambit of the RICO statute.
In United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir.
1974), cert. denied, 420 U.S. 925 (1975), the court stated
that Congress ‘intended to prohibit any pattern of racket-
eering activity in or affecting commerce.’’ And in United
States v. Grzywacz, 603 F.2d 682 (7th Cir. 1979), a case
‘nvolving corruption by public officers using their official
positions for personal gain, the court held that the Madi-
son, Illinois Police Department and individual officers con-
stituted an ‘‘enterprise’’ within the meaning of the racket-
eering statute.
These decisions directly conflict with the decision of the
Sixth Circuit in United States v. Sutton, 605 F.2d 260 (6th
*In United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1979),
cert. denied, 99 S.Ct. 2055, 2056 (1979), the District of Columbia
Court of Appeals indicated in dicta its acceptance of a broad inter-
pretation of “enterprise,” stating that illegitimate business activities
are covered by the RiCO statute as well as activities of legitimate
organizations.
12
Cir. 1979).* In that case, the Sixth Circuit addressed the
question of whether $1962 may be applied to persons en-
gaged in racketeering activity unrelated to any legitimate
organization but in furtherance of ‘‘a criminal enterprise.”’
(605 F.2d at 266.) In stark contrast to the opinion of the
Seventh Circuit in the present case and the other cases
cited above, the Sixth Circuit refused to expand the mean-
ing of the term ‘‘enterprise’’ beyond the words of the
statute and its legislative intent.
In Sutton, the defendants were charged with conducting
a pattern of racketeering in connection with a property
fencing operation and a heroin distribution business. The
court carefully analyzed the racketeering statute, holding
that the government’s ‘‘deceptively literal treatment of
the statutory definition of the term ‘enterprise’ in essence
‘read[s] the ‘enterprise’ element entirely out of the stat-
ute.’’ (605 F.2d at 265.) ‘The court noted that every indi-
vidual or group of individuals considered in the abstract
could not be an ‘‘enterprise’’; individuals could become
enterprises only in relation to something which they do.
The court thus concluded that the statutory definition of
‘‘enterprise’’ in §1961(4) is incomplete because it does not
tell what that ‘‘something’’ is. (605 F.2d at 266.)
The Sixth Circuit found the text of the RICO statute
of no assistance.in-determining the standard as to what
constitutes a criminal enterprise. The court noted the
Fifth Circuit’s description of a criminal enterprise as ‘‘an
amoeba-like infra-structure that controls a secret criminal
network,’’ but stated that greater precision is required
to avoid violating ‘‘the first essential of due process of
* The Sixth Circuit has granted the government’s request for
a rehearing en banc. The parties have been asked to submit their
briefs by the end of December, 1979, with oral argument scheduled
for February, 1980.
13
law’’ by forbidding ‘‘the doing of an act in terms so
vague that [persons] of common intelligence [would] neces-
sarily [have to] guess at its meaning and differ as to its
application.’’ (605 F.2d at 266.) The court added:
‘Although government prosecutors may be trained
nowadays to recognize an ‘amoeba-like infra-structure’
when they see one, our instincts are not so keenly de-
veloped, and we think even racketeers are entitled to
know before the fact at what point their criminal activ-
ities will be deemed sufficiently ‘amoeba-like’ to trans-
gress the statute.’’ (605 F.2d at 266.)
In attempting to find standards for application of the
statute, the Sutton court turned to the legislative history of
the Act, concluding that RICO was enacted in response to
the growing subversion of legitimate institutions of busi-
ness and labor by organized crime. The court rejected the
contention that limiting RICO to the corruption of legiti-
mate enterprises leaves a senseless ‘‘loophole’’ for illegiti-
mate businesses, noting that so called ‘‘illegitimate busi-
nesses’? are already ‘‘comprehensively proscribed and
severely punished by the many provisions of state and fed-
eral law listed under RICO’s definition of ‘racketeering
activity.’ ’’ (605 F.2d at 268.)
In support of its decision, the Sixth Circuit cited the
judicial canon of resolving ambiguity in favor of lenity
unless the legislature has spoken ‘‘plainly and unmistake-
ably’’ to the contrary (relying upon Rewis v. United States,
401 U.S. 808, 812 (1971), and United States v. Gradwell,
243 U.S. 476, 485 (1917)), adding that ‘‘ ‘unless Congress
conveys its purpose clearly, it will not be deemed to have
significantly changed the federal-state balance.’ ’’ United
States v. Bass, 404 U.S. 336, 349 (1971).’’ 605 F.2d at 270.)
In United States v. Moeller, 402 F. Supp. 49, 58-60 (D.
Conn. 1975), the court thoughtfully analyzed the question
14
of whether RICO could apply in a case which did not in-
volve a legitimate business. The indictment in Moeller al-
leged that the ‘‘enterprise’’ under section 1962(c) was a
group of individuals associated for the purpose of burning
and destroying buildings. The court noted that the statutory
definition of ‘‘enterprise’’ contains no words of limitation
concerning the lawfulness of activities, but stated that the
legislative history provided ‘‘the clearest indication’’ that
Congress intended ‘‘enterprise’’ to mean legitimate busi-
nesses. (402 F. Supp. at 58.) The court recognized that Con-
gress may have power to extend federal criminal jurisdic-
tion far enough to encompass the activity in that case, but
held that it should take a clear indication of legislative in-
tention before such a sweeping purpose is attributed to it.
See also United States v. Mandel, 415 F. Supp. 997, 1020-22
(D.Md. 1976).
In Iannelli v. United States, 420 U.S. 770 (1975), this
Court discussed the purpose of the Organized Crime Con-
trol Act of 1970, specifically §1955, but noted the following
relating to Title IX:
‘¢ Additionelly, Title IX, codified in 18 U.S.C. §§1961-
1968, seeks to prevent the infiltration of legitimate
business operations affecting interstate commerce by
individuals who have obtained investment capital from
a pattern of racketeering activity. See §1962.’’ (420
U.S. at 787, n.19.)
Thus, in dictum, this Court has expressed its understanding
of the scope of the anti-racketeering statute, consistent
with petitioners’ view.
Even in the circuits which have applied RICO to general
criminal conduct without regard to the involvement of legi-
timate businesses, several judges have expressed strong
dissents. See e.g., United States v. Rone, 598 F.2d 564, 573-
74 (9th Cir. 1979), Ely, J., dissenting; Umited States v.
15
Grzywacz, 603 F.2d 682, 690-92 (7th Cir. 1979), Swygert,
J., dissenting; United States v. Altese, 542 F.2d 104, 107-11
(2d Cir. 1976), Van Gaafeiland, J., dissenting, cert. denied,
439 U.S. 1039 (1976). There is a considerable difference of
opinion among federal judges on the interpretation of
RICO. This court should resolve that difference in the
interest of uniform application of federal penal laws. The
conflict between the circuits concerning the scope of this
increasingly used* statute is now ripe for determination
by this Court.
This Court Should Limit Application Of
Section 1962 To Racketeering Activity
In The Conduct Of Legitimate Businesses,
Consistent With Its Legislative History.
Section 1962 is part of Title IX of the Organized Crime
Control Act of 1970. Title LX is entitled ‘‘Racketeer Influ-
enced and Corrupt Organizations,’’ and consists of sections
1961-1968. Reports from the United States Senate and the
House of Representatives demonstrate the legislative in-
tention that section 1962 apply to the infiltration by orga-
nized crime of legitimate organizations.
The Senate Report** states that Title IX ‘‘has as its
purpose the elimination of organized crime and racketeer-
* See Atkinson, “Racketeer Influenced and Corrupt Organiza-
tions,” 18 U.S.C. §§1961-68: Broadest of the Federal Criminal
Statutes, 69 J.Crim.L.&C. 1, 3 n.21 (1978); Note, Coverage and
Application of the Organized Crime Control Act of 1970: The Anti-
Racketeering Statute in Operation, 53 Chi.-Kent L. Rev. 498 (1977) ;
National Law Journal, Sept. 17, 1979, at 1, 13.
** Senate Committee on the Judiciary, Report on Organized Crime
Control Act of 1969, S.Rep. No. 617, 91st Cong., First Session
(1969).
16
ing into legitimate organizations operating in interstate
commerce.’’ Similarly, the Report of the House of Repre-
sentatives on the Organized Crime Control Act of 1970*
states that ‘‘Section 1962 establishes a three-fold prohibi-
tion aimed at stopping the infiltration of racketeers into
legitimate business organizations.’’
Numerous quotations from the Senate and House Reports
and Hearings demonstrate that section 1962 was not in-
tended to encompass illegal enterprises where there is no
effect on legitimate businesses. For example:
Senator Hruska (Co-Sponsor of Act): ‘‘Title IX is
designed to remove the influence of organized crime
from legitimate business.’’ (116 Cong. Rec. at 602.) -
Congressman Cellar (Chairman of the House Subcom-
mittee on the Judiciary that considered the Act}: ‘‘As
I understand Title IX it combines criminal and civil
penalties which are directed towards organized crime
infiltration of legitimate business.’’ (House Hearings,
at 188.)
Congressman Anderson: ‘‘Title IX is aimed at keep-
ing organized crime out of legitimate business through
the use of both criminal and civil penalties.’’ (116
Cong. Rec. 35319.)
Remarks of Congressman St. Germain: ‘‘Title 1X is
aimed at keeping organized crime out of legitimate
business through the use of both civil and criminal
penalties.’’ (116 Cong. Rec. 35200.)
Remarks of Congressman Railsback: !In regard to
Title [IX] ‘‘This title is designed to deal with the infil-
tration of organized crime into legitimate business and
labor.’’ (116 Cong. Rec. 35304.)
* House Report No. 91-1549, U.S.C. Cong. and Admin. News,
91st Cong., Second Session (1970) at 4007, 4003.
17
In a law review article, Senator John L. McClellan, spon-
sor of the Organized Crime Control Act, which encompasses
section 1962, analyzed each title of the Act, explaining that
‘“Title IX [§§1961-1968] is aimed at removing organized
crime from our legitimate organizations.’’ McClellan, The
Organized Crime Act (S. 30) Or Its Critics; Which
Threatens Civil Liberties?, 46 Notre Dame Lawyer 55, 141
(1970).*
This Court has held that legislative intent should be
considered in construing statutes. See e.g., Philbrook v.
Glodgett, 421 U.S. 707, 713-14 (1975) ; Holy Trinity Church
v. United States, 143 U.S. 457, 472 (1892). Furthermore,
this Court has held and frequently reiterated that, in crimi-
nal cases, any uncertainty regarding statutory language
should be resolved in favor of the defendant. Rewis v.
United States, 401 U.S. 808, 812 (1971); United States v.
Campos-Serrano, 404 U.S. 293, 297 (1971); United States
v. Bass, 404 U.S. 336, 347-48 (1971).
Another factor which militates against the broad con-
struction of RICO espoused by the Seventh Circuit is the
danger of construing federal criminal statutes broadly
so as to affect ‘‘sensitive federal state relationships”’
‘‘transform[ing] relatively minor state offenses into fed-
eral felonies.’’ See Rewis v. United States, 401 U.S. 808, 812
(1971); United States v. Mandel, 415 F.Supp. 997, 1020-
* The opinion below (App. 1 at 6-7) quotes extensively from this
article to establish that the offenses listed in the act as “racketeering
activities” are not limited to offenses committed primarily by
organized crime. The issue, however, is not whether the “racketeer-
ing activity” must be an organized crime activity. The issue is
whether the “enterprise” conducted through “racketeering activity”
must be a legitimate enterprise. The Senator’s discussion contains
nothing which supports the Seventh Circuit’s construction of the
term “enterprise.”
18
22 (D.Md. 1976). Wholesale conversion of state crimes into
federal offenses hardly seems desirable in view of the con-
gested dockets facing many of the federal district courts.
Yet the decision below converts any two robberies com-
mitted within ten years of each other into a RICO offense
where there is any interstate commerce connection.
Further, the well established doctrine of ejusdem generis
warns against expansively interpreting broad language
which immediately follows narrow and specific terms.
United States v. Insco, 496 F.2d 204, 206 (5th Cir. 1974) ;
United States v. Baranski, 484 F.2d 556, 566 (7th Cir. 1973).
Since the broad phrase ‘‘[any] group of individuals asso-
ciated in fact although not a legal entity,’’ appearing in
§1961(4) is preceded by narrower terms such as ‘‘union,”’
‘‘partnership’’ and ‘‘corporation,’’ and because these terms
suggest a ‘‘legitimate’’ connotation, the doctrine of eyusdem
ger«ris militates in favor of a narrow definition of ‘‘en-
terprise.’’
This Court should grant certiorari to determine whether
the Seventh Circuit and other courts have disregarded fun-
damental principles of statutory construction in applying
RICO to the facts of this and similar cases.*
C.
If RICO Is Not Limited To Cases Involving
Legitimate Enterprises, The Statute Should Be
Declared Unconstitutional.
In Connally v. General Construction Company, 269 U.S.
385, 391 (1926), this Court enunciated a basic tenet of
criminal iaw:
* See Comment, Organized Crime and the Infiltration of Legiti-
mate Business—Civil Remedies for “Criminal Activity,” 124 U.Pa.L.
Rev. 192 (1975).
19
‘‘A statute which either forbids or requires the doing
of an act in terms so vague that men of common intel-
ligence must necessarily guess at its meaning and dif-
fer as to its application violates the first essential of
due process of law.’’
This Court has frequently reiterated that criminal prohi-
bitions must be clearly defined to adequately apprise per-
sons of the criminal consequences of their conduct. Smith
v. Goguen, 415 U.S. 566, 574 (1974) ; United States v. Umi-
versal C.1.T. Credit Corp., 344 U.S. 218, 224 (1952); Lan-
zetta v. New Jersey, 306 U.S. 451, 453 (1939). See also,
Papachristou v. City of Jacksonville, 405 U.S. 156, 162
(1972).
At least one Circuit Court of Appeals and two District
Courts have found that the statute is too vague to ade-
quately apprise persons of the possible criminal conse-
quences of their acts. United States v. Sutton, supra;
United States v. Moeller, supra; United States v. Mandel,
supra. In addition, the dissents in the cases cited above
(pp. 14-15, supra), exemplify the difficulties judges have
had in determining the reach of the RICO statute. If nu-
merous judges—all learned in the law—are unable to agree
on the scope of the RICO statute, ordinary persons with no
legal training cannot be held to a higher standard. Unless
the term “‘enterprise’’ is limited as the legislative history
of the statute indicates it should be, the statute is void for
vagueness and overbreadth and must be declared uncon-
stitutional.
If held applicable to any acts of ‘‘racketeering’’ involv-
ing interstate commerce, the statute is not only unconstitu-
tionally vague and overbroad, but it also places unbridled
discretion in the police and prosecutors in determining the
acts and parties to be charged under it. Statutes which
effectively allow policemen and prosecutors to make such
20
judgments have been held unconstitutional by this Court
since ‘‘legislatures may not so abdicate their responsibility
for setting the standards of criminal law.’’ Smith v.
Goguen, 415 U.S. 566, 574 (1974) ; Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972). ;
It has generally been held that a prosecutor has con-
siderable discretion in determining whether to bring an
indictment against an individual. However, giving him the
unfettered discretion to determine whether a defendant
should be charged with a RICO violation carrying the
penalty of 20 years incarceration-—as opposed to an under-
lying offense which may carry a penalty of 5 to 10 years*—
unconstitutionally subjects individuals to the whim of the
prosecutor, denying defendants their right to equal pro-
tection under the Fourteenth Amendment to the United
States Constitution.** Cf. Yick Wo v. Hopkis, 118 U.S.
356 (1886); United States v. Falk, 479 F.2d 616, 624 (7th
Cir. 1973).
Thus, even if the opinion below is correct in its broad
application of RICO, this Court should review the case
to determine whether a statute so broad in scope and so
vague in its application transcends constitutional limita-
tions.
* Section 1962 can be applied to persons committing two or more
misdemeanors under federal labor laws, which would otherwise
carry a maximum of one year imprisonment for each offense. 29
U.S.C. §186.
** The Fourteenth Amendment is applicable to the federal gov-
ernment through the Fifth Amendment. Bolling v. Sharpe, 347
U.S. 497 (1954).
~~ Sse poan Arbor ate ar, PO a = ERR ONE My i sre
LI I ee Te a NL Ie ee os ee >
ror A eg " Sage . oi A + . oh 5 ge . i> ae eae 6h snd 7 oo, “a8 ,
ee
pms jong sAieeePTE ORT:
ERR MEST: EAN hy aS OEY
ere
d hy Vito
Leo LES 4.
21
D.
Due Process Principles, If Not Double Jeopardy Per Se,
Require Review Of Petitioners’ Multiple Punishment
Based On The Same Conduct.
As set out in the introduction to this section (pp. 8-10,
supra), both petitioners received consecutive sentences for
the RICO convictions and counts underlying the RICO
charges. Additionally, before his federal trial, Foresta
was convicted in an Indiana state court of one of the rob-
beries which formed the basis for the charges in the present
case. (See App. 1 at 16-18.) The Seventh Circuit, citing
Abbate v. United States, 359 U.S. 187, 194 (1959), and
Bartkus v. Illinois, 359 U.S. 121 (1959), held that Mr.
Foresta’s Indiana conviction and sentence did not preclude
the federal prosecution. (App. 1 at 17.)
To the extent that the dual sovereignty principles in
Abbate and Bartkus remain the law, state and federal
prosecutions based on the same facts are not constitution-
ally prohibited by the federal protection against double
jeopardy. Nonetheless, petitioner Foresta submits that the
composite aggregation of the maximum possible federal
offenses (allowable under RICO—see App. 1 at 14), when
imposed in addition to the Indiana sentence," constitutes
multiple punishment for the same conduct, which due pro-
cess of law cannot countenance. Cf. Ashe v. Swenson, 397
U.S. 436, 445 (1970). Moreover, federal participation in
petitioner Foresta’s earlier Indiana state trial (see App. 1
* Mr. Foresta was sentenced to eighteen years by the Indiana
state court.
22
at 17) forecloses reliance on ‘‘dual sovereignty’’ to defeat
the quadruple punishment claim. Cf. Elkins v. United
States, 364 U.S. 206 (1960) ; Rios v. United States, 364 US.
253 (1960).
Petitioners request that certiorari be granted so
this Court may reconsider whether multiple federal sen-
tencing for the same conduct, following a state sentence
for the underlying offense, is permissible under prevailing
views of double jeopardy and dual sovereignty and, in any
event, whether due process permits what amounts to quad-
ruple punishment for a single course of conduct. This
Court should also consider the multiple sentencing question
in the context of the proper application of RICO, as set
forth in the introduction to Part I, pp. 9-10, above.
Il.
THIS COURT SHOULD REVIEW THE REFUSAL TO
SEVER COUNTS FOR TRIAL, OR ALTERNATIVELY,
TO ELIMINATE EVIDENCE OF PREJUDICIAL SUR-
PLUSAGE FROM THE JURY’S CONSIDERATION.
Both petitioners moved for severance of counts charging
Foresta with possessing and transporting a firearm in com-
merce after having previously been convicted of robbery
by assault in violation of 18 U.S.C. $922(g) and 18 U.S.C.
§1202(a)(1). The Seventh Circuit stated that, upon the
trial court’s denial of a severance, ‘‘Foresta’s prior felony
conviction thus became necessarily an element of the gov-
ernment’s proof.’’ (App. 1 at 21.) Paying compulsory lip-
service to the principle that juries are presumed to follow
limiting instructions,* the court rationalized that the trial
court had no choice other than to admit the complained-of
evidence.
* But see Bruton v. United States, 391 U.S. 123, 129 (1968).
<< —_
23
Nowhere in the opinion does the Court of Appeals ac-
knowledge what should have been the determinative factor:
Foresta offered to stipulate to the prior felony conviction*
requesting that the jury not be informed that the specific
felony was robbery.** This crucial unmentioned fact
destroys the rationale employed by the court below. Even
if severance was not required, the trial court should have
acceded to petitioners’ request that the jury not be advised
that the nature of the prior felony was—like the underlying
offenses in issue—robbery.
A defendant’s prior troubles with the law ordinarily are
kept from the jury, not because such evidence is not proba-
tive of his guilt of the offense charged, but, rather, because
such evidence is judicially recognized to weigh too heavily
with a jury, rendering it too likely that they will convict
him on the basis of his past conduct. See Michelson v.
United States, 335 U.S. 469, 475-76 (1948).
This Court should grant certiorari to set limits on ad-
mission of prejudicial evidence where, as in the present
case, the irremediable prejudice can be avoided by honoring
a defense offer to stipulate.
* Petitioner’s offer to stipulate was called to the reviewing court’s
attention. See defendants’ oxiginal brief (on file in the Seventh
Circuit, No. 78-1782 and 78-1783), p. 61.
** The jury was informed that Foresta had a prior conviction for
robbery, but was not informed that it was “by assault.”
ee ee
24
CONCLUSION
For the foregoing reasons, petitioners respectfully pray
that this Court grant a writ of certiorari to review the
judgment of the Court of Appeals for the Seventh Cireuit
in this case.
Respectfully submitted,
Donaup R. Harris
Caro. R, THIGPEN
MicHakEL B. BroHMAN
JENNER & BLOCK
One IBM Plaza
Chicago, IL 60611
Attorneys for Petitioner
Harry ALEMAN
JuLius Lucius EcHELES
35 East Wacker Drive
Room 3500
Chicago, IL 60601
Attorney for Petitioner
Leonarp ForEsTA
APPENDIX
APPENDIX 1
an the
United States Court of Appeals
For the Seventh Circuit
Nos. 78-1782 and 78-1783
Unrtep States oF AMERICA,
Plaintiff-Appellee,
v.
Harry AuemMan and Leonarp Foresta,
Defendants-A ppellants.
Appeal from the United States District Court for the
Northern District of Dlinois, Eastern Division.
No. 77 CR 789 — Stanley J. Roszkowski, Judge.
Arcuep Fesruary 27, 1979 —- Denrep Octoser 30, 1979
Before Swycert, Baver, and Woop, Circuit Judges.
Woop, Circuit Judge. The basic issue in this case is
the applicability of the Racketeer Influenced and Corrupt
Organizations Act (RICO)* to criminal activities which do
not constitute the iniltration by organized crime of legiti-
mate business. Defendants deny that the Act can be ap-
plied to a series of burglaries committed in two states by
defendants who are not shown to be members of ‘‘organ-
1 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961-1968 (1976).
App. 2
ized crime’’ but also argue, in the alternative, that if the
Act is applicable to these particular circumstances, then
it should be declared unconstitutional as being vague, a
denial of equal protection and as permitting the imposi-
tion of cruel and unusual punishment. The other issues
relate to severances, alleged trial errors, and sentencing.
We resolve all the issues against defendants.
Defendants Aleman and Foresta were charged in a nine
count indictment with two violations of RICO by reason
of a pattern of racketeering activity involving the com-
mission of three home robberies in Illinois and Indiana.
The additional counts alleged the transportation of stolen
goods from an Indiana robbery in interstate commerce,
and the transportation and possession of firearms. In a
jury trial Aleman was found gyilty on one count of con-
spiracy to violate the Act (18 U.S.C. § 1962(d)) (Count I),
one count charging a substantive violation of the Act (18
U.S.C. § 1962(c)) (Count IL),? and one count of trans-
porting stolen goods in interstate commerce (18 U.S.C.
§ 2314) (Count IIL). Aleman was found not guilty on two
2 The pertinent RICO statutory sections are as follows:
18 U.S.C. § 1962(c) provides:
(c) It shall be unlawful for any person employed by or associ-
ated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprises’s affairs
through a pattern of racketeering activity or collection of un-
lawful debt.
18 U.S.C. § 1962(d) provides:
(d) It shall be unlawful for any person to conspire to violate
any of the provisions of subsections (a), (b), or (c) of this
section.
3% Aleman was sentenced to imprisonment for two concurrent terms
of 20 years and one consecutive 10-year term for a total of 30 years.
a
App. 3
firearms counts (Counts V and VII). Foresta was found
guilty of the same RICO violations and Count III, and in
addition guilty of the particular firearms violations ap-
plicable to him (Counts IV, VI, VIII, and I[X).*
THE FACTS
Some examination of the evidence is necessary. The
government’s case was based to a large extent on the
testimony of Louis Almeida, concededly a professional
criminal, who was named in the indictment as an un-
indicted co-conspirator. His testimony was supplemented
by testimony of the home invasion victims. Three rob-
beries were involved.
The first robbery occurred on September 16, 1972, at
the home of Mrs. Barbara LaPapa in Oak Lawn, Llinois,
following a meeting at the Survivor’s Club in Chicago
between Aleman, Foresta, Almeida, and two others, not
involved in this appeal. It was believed by them that
Mrs. LaPapa had a large amount of cash in her home
which they planned to steal and divide. Foresta and
Almeida were selected to actually perform the robbery.
Aleman provided the keys to a stolen car for their use
and the address of the target home. At the home Foresta
threatened Mrs. LaPapa by pressing the barrel of his
gun against her stomach and then with help from
Almeida tied her up on the floor. A 14-year old baby
sitter for Mrs. LaPapa’s infant child was also tied up.
After about 30 minutes spent in searching the house and
collecting cash and jewelry, Foresta and Almeida left
leaving the victims tied. They returned with the loot to
the club where the others waited. Aleman paid Foresta
and Almeida each $500 for their burglary services.
4 Foresta was sentenced to imprisonment for concurrent terms of
20 years and a consecutive term of 10 years for a total of 30 years
together with additional concurrent terms of 10 years and 2 years.
App. 4
The second burglary did not occur until January 1973,
although the defendants and Almeida continued to associ-
ate with each other. The genesis of this robbery also took
place at the club. The target was a doctor’s home in Indi-
anapolis where defendants believed a large amount of cash
was kept. Foresta and Almeida were again selected to
actually undertake the robbery. Aleman supplied the in-
formation about the target home along with a sheriff’s
badge to be used as a ruse to gain entry. Aleman advised
that weapons be carried. Proceeding to Indianapolis,
Foresta and Almeida first went to the residence of Leo
Miroff, a friend of Aleman’s, as they had been instructed
to do by Aleman. Miroff and his girl friend, Jane Powers,
were present. Miroff, assuring Foresta and Almeida about
the amount of cash, showed them the doctor’s home. Later
Foresta and Almeida went to the doctor’s home and, using
the sheriff’s badge, pushed their way in past the maid, the
only person present. She was threatened with a gun and
then tied up. After about an hour Foresta and Almeida
left with jewelry, furs, and cash, of a total value of about
$35,000, and with the maid’s car which was later
abandoned. Rejoining Miroff and Powers, all four drove
with the fruits of the robbery to the home of Aleman in
Chicago. Again Aleman paid Foresta and Almeida each
$500 for their burglary services. Miroff, at Aleman’s
direction, was to sell the stolen goods piecemeal rather
than in bulk. In the meantime Miroff and Powers
became house guests of a friend, Robert Harder, in the
Chicago area where they stored the Indianapolis loot
while attempting to dispose of it. Miroff chose one
prospective customer, but it was a bad choice. The
customer was an undercover agent of the Federal
Bureau of Narcotics and Dangerous Drugs. As a result,
most of the loot was recovered in connection with arrests
App. 5
at the friend’s house. Also seized was a small book with
names and telephone numbers which is involved in one
of the trial issues.
The third robbery followed in November 1973 after
additional contacts between the parties at the club and a
pre-robbery planning session. This time the target was a
north side Chicago home where information led them to
believe they would find a large quantity of gold coins.
Aleman, Almeida, Foresta, and another man directly
participated in this robbery. Again using the sheriff’s
badge, Foresta and Almeida entered the home and struck
the owner in the head with a gun. When he fell, they tied
him. His wife was also tied. All four of the robbers
searched and ransacked the house for almost an hour and
left with about $6,500 worth of various items, but no gold
coins.
The defendants did not testify, and relied in their defense
primarily on efforts to impeach Almeida and in discredit-
ing eyewitness identifications.
APPLICATION OF RICO
Based on those facts, the indictment charged in part:
[Being persons associated with an enterprise engaged
in and the activities of which affected interstate com-
merce, to wit, a group of individuals associated in fact
to plan and commit robberies, to carry away stolen
goods and to divide among themselves the stolen goods
and all proceeds derived therefrom, unlawfully, wil-
fully and knowingly did conduct and participate, di-
rectly and indirectly in the conduct of such enterprise’s
affairs through a pattern of racketeering activity, to
wit, the commission of robberies in Chicago, Illinois,
Oak Lawn, Illinois and Indianapolis, Indiana.
Defendants claim that their alleged criminal conduct does
not violate either § 1962(c) or § 1962(d). To support their
App. 6
view they point out numerous congressional quotations
from Reports of the Senate® and House® suggesting a legis-
lative intention that § 1962 was to apply only to the infiltra-
tion by organized crime of legitimate organizations. How-
ever, nothing is found in the legislative history, even if
we assume that some ambiguity in the Act requires that it
be examined, to suggest that the broad wording of the
statute is strictly limited to organized crime activities
where legitimate business is involved, and may not be used
under its broad language to also curb other criminal activi-
ties when the acts are part of an illegal enterprise. In addi-
tion to the quotations from various Congressmen, defen-
dants cite a law review article written by the late Senator
John L. McClellan, one of the sponsors of The Organized
Crime Control Act, which encompasses § 1962. ‘‘Title IX
[§§ 1961-1968],’’ the Senator wrote, ‘‘is aimed at removing
organized crime from our legitimate organizations.’’ Mc-
Cleilan, The Organized Crime Act (8. 30) Or Its Critics:
Which Threatens Civil Liberties?, 46 Notre Dame Law. 55,
141 (1970). But that one sentence is not all the Senator
said about the purposes of Title IX. A few pages later the
Senator, in answer to criticisms that the statutory list of
crimes of which robbery is a part was too inclusive and in-
cluded offenses often committed by persons not engaged in
organized crime, further explained:
The Senate report does not claim, however, that the
listed offenses are committed primarily by members of
organized crime, only that those offenses are charac-
teristic of organized crime. The listed offenses lend
themselves to organized commercial exploitation, un-
5 Senate Committee on the Judiciary, Report on Organized Crime
Control Act of 1969, S. Rep. No. 91-617, 91st Cong., 1st Sess.
(1969).
6H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. reprinted in
[1970] U.S. Code & Adm. News 4007, 4033.
are aie ta ler, Leanna rte (eb SBMA CELENTANO FS ncenrane me
App. 7
like some other offenses such as rape, and experience
has shown they are commonly committed by partici-
pants in organized crime. That is all the title IX list
of offenses purports to be, that is all the Senate report
claims it to be, and that is all it should be.
Id. at 142-43. (Emphasis by the Senator). Then on the next
page the Senator further explains Title IX of the Act:
It is self-defeating to attempt to exclude from any
list of offenses such as that found in title [X all of-
fenses which commonly are committed by persons not
involved in organized crime. Title [X’s list does all
that can be expected, as does the list found in the elec-
tronic surveillance provisions of title III of the 1968
Safe Streets Act—it lists offenses committed by or-
ganized crime with substantial frequency, as part of
its commercial operations. The danger that commis-
sion of such offenses by other individuals would sub-
ject them to proceedings under title [X is even smaller
than any such danger under title III of the 1968 act,
since commission of a crime listed under title LX pro-
vides only one element of title [X’s prohibitions. Un-
less an individual not only commits such a crime but
engages in a pattern of such violations, and uses that
pattern to obtain or operate an interest in an inter-
state business, he is not made subject to proceedings
under title LX.
Id. at 144.
The clear implication is that it is realized that the Act
is not restricted to members of organized crime, but can
be used to reach out for others if the statutory conditions
are met.
The prohibitions of 18 U.S.C. § 1962(c) apply to ‘‘any
person’’ and ‘‘any enterprise.’’ Although the stated pur-
pose of the Organized Crime Act, of which RICO is a part,
is to eradicate organized crime, the statute itself does not
require proof that the defendant or the enterprise are con-
SS ee —"
App. 8
nected with organized crime. In § 3503(a) of Title VI of
the Organized Crime Control Act, Congress demonstrated
it knew how to limit a provision to ‘‘a person who is be-
lieved to have participated in an organized criminal activ-
ity’’ if that was what was intended. 18 U.S.C. § 3503(a).
The statute defines ‘‘person’’ merely as including ‘any
individual or entity capable of holding a legal or beneficial
interest in property.’’’ ‘‘Enterprise’’ is defined as includ-
ing ‘‘any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals
associated in fact although uot a legal entity... .’’*® Our
interpretation of RICO is not novel. In United States v.
Campanale, 518 F.2d 352, 363 (9th Cir. 1975), cert. denied,
423 U.S. 1050 (1976), the court notes that although Con-
gress ‘‘focused on some of the kinds of activities by which
individuals and associations engaged in organized crime
maintained their income or influence,’’ § 1962 ‘‘makes un-
lawful such activities no matter who engages’’ in them.
Although there need be no allegation of organized crime,
there is the requirement that a ‘‘pattern of racketeering’”’
be alleged and proven. It was. Racketeering activity as
defined in the statute includes the state crime of robbery.°®
A pattern may be established by showing only two acts of
racketeering activity.”
Defendants argue that § 1962 is not applicable to an il-
legal enterprise, but only to an infiltrated legitimate busi-
ness. In support of their positions, defendants first cite
Church of the Holy Trinity v. United States, 143 U.S. 457
(1892), for the view that general statutory language di-
718 U.S.C. § 1961(3).
818 U.S.C. § 1961(4).
18 U.S.C. § 1961(1).
10 18 U.S.C. § 1961(5).
App. 9
rected toward a particular evil should not be read to un-
expectedly encompass other evils. However, the Court
qualified that statement. The statute, it said, should not
be read so broadly so as to reach ‘‘acts which the whole
history and life of the country affirm could not have been
intentionally legislated against.’’ 143 U.S. at 472. Home
invasion does not qualify as such an act.
But, defendant argues even if Congress may not have
intended to limit § 1962 to infiltration of legitimate busi-
ness, any uncertainty should be resolved in favor of defen-
dants. Rewis v. United States, 401 U.S. 808 (1971) ; United
States v. Campos-Serrano, 404 U.S. 293 (1971). In Rewis
the Court reaffirmed that ambiguity concerning the ambit
_ of criminal statutes should be resolved in favor of lenity.
In that case, however, along with other considerations the
statutory language under consideration was given its ordi-
nary meaning which limited the act’s ambit. 401 U.S. at
811. In Campos-Serrano, while considering whether pos-
session of a counterfeit alien registration card was an act
punishable under 18 U.S.C. § 1546, the Court repeated the
Jong settled general rule that penal statutes are to be strict-
ly construed. 404 U.S. at 297. RICO statutory language,
however, was not being interpreted.
We previously touched on this problem in United States
v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420
U.S. 925 (1975), a civil proceeding under § 1962(b), (c),
and (d). We held that in addition to a congressional inten-
tion to protect legitimate business against infiltration by
racketeers, the statute covered other patterns of racketeer-
ing activities in or affecting commerce, in that case a
gambling business. 502 F.2d at 1358. Later in United States
v. Nerone, 563 F.2d 836, 850 (7th Cir. 1977), cert. denied,
435 U.S. 951 (1978), we recognized our prior holding in
Capetto, but Nerone was a case in which the government
App. 10
undertook to establish infiltration. Defendant would dis-
tinguish those cases on the basis that in each the gambling
involved might conceivably be considered as businesses,
although illegal, but it is absurd, defendant argues, to
consider the activities in the present case as constituting
a ‘‘home robbery business.’’ However, defendant forth-
rightly bring to our attention a contrary view expressed
in United States v. Elliott, 571 F.2d 880 (5th Cir. 1978),
cert, denied, 99 S.Ct. 349 (1978), in which that court held
that a group of people who engaged in arson, murder and
truck hijackings constituted an ‘‘enterprise’’ under § 1962.
That was not a new interpretation of § 1962 by the Fifth
Circuit. In United States v. Hawes, 529 F.2d 472, 479 (5th
Cir. 1976), the court held that the term ‘‘enterprise’’ had ~
a very broad meaning and was not restricted to legitimate
business enterprises. The D.C., Second, and Ninth Circuits
have expressed similar views. United States v. Swiderski,
593 F.2d 1246 (D.C. Cir. 1978), cert. denied, 99 S.Ct. 2055,
2056 (1979) ; United States v. Altese, 542 F.2d 104 (2d Cir.
1976), cert. denied, 429 U.S. 1039 (1977) ; United States v.
Rone, 598 F.2d 564 (9th Cir. 1979); United States v. Camp-
anale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S.
1050 (1976). Also we have recently held in United States
v. Greywace, 603 F.2d 682 (7th Cir. 1979), J. Swygert dis-
senting, that public entities and individuals, in that case
a police department, may be considered enterprises for
RICO purposes through which racketeering is conducted.
Only the Sixth Circuit has held that RICO was restricted
in application to legitimate business enterprises. United
States v. Sutton, Nos. 78-5134, 78-5135, 78-5136, 78-5137,
78-5138, 78-5139, 78-5141, 78-5142, 78-5143 (6th Cir. Sept.
4, 1979). We align ourselves with Judge Engle’s view in
dissent that RICO is not limited to include only legitimate
business. Sutton, at page 23.
App. 11
As the Fifth Circuit explained in Elliott, 571 F.2d 880,
part of the dispute as to whether RICO includes illegiti-
mate businesses derives from dicta in lammelli v. United
States, 420 U.S. 770 (1975). Elliott, 571 F.2d at 879 n.17.
In Iamnelli in footnote 19 the Supreme Court commented
that RICO seeks to prevent infiltration of legitimate busi-
ness by racketeers, but we see no indication in that com-
ment that was intended as a signal that RICO coverage
should be given a more limited interpretation than the
statute on its face suggests.
In Elltott, 571 F.2d at 898, the court analogized the il-
legal enterprise there under consideration to a large busi-
ness conglomerate with a chairman of the | .ard overseeing
the operations of separate corporate departments. Perhaps
' such an impressive organization was the ambition of the
defendants in the present case. At the time it was closed
down, however, at least so far as the evidence reveals, it
could only be regarded as a small business. Aleman was
the proprietor. The business office was the Survivor’s Club.
Their investment in equipment was negligible as the cars
they used were stolen. The payroll was limited. Perhaps
given more time, their business would have successfully
grown into a conglomerate at the expense of their victims,
but fortunately for the public the defendants were put out
of business.
The defendants also contend that if § 1962(c) is read to
include illegitimate business it should be deemed void for
vagueness. That the phrase ‘‘any enterprise’’ is broad in
scope, does not mean that because it includes both legiti-
mate and illegitimate enterprises instead of only one or
the other that it is therefore vague. As we have noted,
‘‘enterprise’’ is broadly defined by the statute to include
among other things a ‘‘group of individuals associated in
App. 12
fact although not a legal entity.’’’! Being broad in scope
is not synonymous with being vague. Our view on this
issue is shared by others.”
The defendants also argue that RICO violates their
rights to equal protection because of the discretion per-
mitted the prosecutor to charge a RICO offense or to
select only an underlying crime. Prosecutorial discretion
does not itself constitute a violation of equal protection
unless it is abused for reasons of race, religion or other
arbitrary and improper classification which is not claimed
to exist in this case. United States v. Neary, 552 F.2d 1184,
1195 (7th Cir.), cert. denied, 434 U.S. 864 (1977). We would
expect, however, that government prosecutorial policy will
reserve use of this statute for racketeers, leaving local
crimes to local authorities. The vagueness argument of
defendants is broader than possible abuse of prosecutorial
discretion. The statute is vague, defendants claim, be-
cause it is impossible to tell which offenses may fall within
the ambit of §1962. Because would-be racketeers may have
some alleged difficulty in determining in advance whether
their contemplated activities may violate the statute does
not mean that the courts must adopt their interpretation
of the statute. The statute is clear enough on its face to
serve the purposes of both the public and the racketeer.
The defendants also argue that unless restricted only to
organized crime the statute denies equal protection. We
1118 U.S.C. § 1961(4).
12 United States v. Hawes, 529 F.2d 472, 479 (Sth Cir. 1976) ;
United States v. Campanale, 518 F.2d 352, 364 (9th Cir. 1975),
cert. denied, 423 U.S. 1050 (1976) ; United States v. Cappetto, 502
F.2d 1351, 1357-58 (7th Cir. 1974), cert. denied, 420 U.S. 925
(1975) ; United States v. Parness, 503 F.2d 430, 441-42 (2d Cir.
1974), cert. denied, 419 U.S. 1105 (1975).
App. 13
see no denial of equal protection to racketeers who strive
to emulate the achievements of their brothers in organized
crime.
Finally, defendants claim RICO is repugnant to the
Kighth Amendment’s ban against cruel and unusual pun-
ishment because, as the government views the statute, it
may be applied to other than members of organized crime.
We find no merit in that contention. Although a RICO of-
fender may be sentenced to a maximum of 20 years the
sentence is not mandatory. A § 1962 offender may be sen-
tenced to less than 20 years, fined or given probation. If
a defendant qualifies as a racketeer able to accomplish the
same illegal goals as organized crime he qualifies for the
punishment. The court’s sentencing discretion applicable
’ to all offenders alike does not run afoul of the Constitution.
OTHER ISSUES
The defendants argue that the indictment is multiplici-
tous, charging defendants with the same offense in various
counts, because of the interrelationship between Counts I
and If and Count III. Count I charged a RICO conspiracy
incorporating by reference Count III as one of several
overt acts. Count II alleged a substantive RICO offense
and likewise incorporated Count III as an additional
racketeering act. Count III charged the defendants with
the substantive crime of interstate transportation of stolen
property. The sentences for each defendant on Count III
were made consecutive to the sentences on Counts I and II.
In addition, Foresta was convicted by a state court of the
same Indiana robbery. Defendants rely primarily on Prince
v. United States, 352 U.S. 322 (1957), in which the Court
held that the entry into a bank with intent to rob was not
intended as a separate offense under 18 U.S.C. § 2113 from
the consummated robbery and therefore the intended crime
merged into the completed crime.
App. 14
We are considering a different statutory scheme. OUon-
gress made its intent clear that RICO did not supersede
any other law, federal or state, imposing penalties in ad-
dition to those provided by RICO." Congress stated its
intent was to provide enhanced sanctions."* RICO § 1961(5)
illustrates this congressional intent. It requires that to
constitute an offense that two predicate acts must occur
within 10 years, but from that 10 year period is excluded
‘‘any period of imprisonment.’’ It is implicit in that pro-
vision that even though a defendant has already served
time for the first predicate offense that first offense may
still be used as an element in establishing a RICO ‘‘pat-
tern.”’
We see no multiplicity, as each count, although related,
required in part different proof. Merely incorporating by
reference a substantive count into a conspiracy count does
not constitute multiplicity. United States v. Bartemio, 547
F.2d 341, 345 (7th Cir. 1974). The Count I conspiracy is
obviously distinct from the Count III charge of interstate
transportation of the fruits of the burglary. Count II re-
quiring proof of the conduct of the enterprise’s affairs
through a pattern of racketeering activity is in contrast
to the proof required to sustain Count III, and lacks the
necessity of proof of conspiracy.
Defendants also claim that there were three prejudicial
trial errors. First, defendants complain about a question
asked on cross-examination of George Marcantonio, a de-
fense witness called by Aleman. Marcantonio testified he
would not believe Almeida, the government’s witness, under
oath. Marcantonio claimed to have only the slightest of
18 Sec, 904(b) of Pub. L. 91-452, 84 Stat. 947 (1970).
14 84 Stat. 923 (1970).
App. 15
social relationship with Aleman, The government then
asked, ‘‘Isn't it correct, Mr. Marcantonio, that you are
afraid of Mr, Aleman!’’ There was a defense objection
and a side bar conference at which Aleman’s counsel moved
for a mistrial which was denied, The trial judge carefully
explored the circumstances surrounding the government's
question, Government counsel explained that the basis for
the question was available government evidence that Mar-
cantonio had been involved in the robbery of an armored
truck with Aleman who had viciously beaten up Maroan-
tonio thus causing Marcantonio to fear Aleman, It was
explained that Almeida was also the primary witness about
that episode and that the government possessed Almeida'’s
written statement, Certain law enforcement officers, the
' government claimed could supply circumstantial evidence
about the affair, Government counsel further explained
that not knowing Marcantonio would be called as a witness,
he was not prepared at that moment during the side bar
conference to say whether or not the government would
pursue the matter and offer the evidence to show Marean-
tonio’s bias, Mareantonio, outside the presence of the jury,
donied the government's allegations about his relationship
with Aleman, The matter was not puraued further before
the jury. The record does not reveal that Marcantonio an-
awored the question before the jury although some counsel
believe he did, If he did reapond, it appears the anawoer
would have been that he waa not afraid of Aleman, Defense
counsel failed to follow up their original objection before
the jury as they sought no ruling upor it, Nor waa there
any defense request to atrike the queation and anawer, if
there was an answer, or to inatruct the jury to disregard it,
At the close of all the evidence the defendants did not re-
new any objection or again move for mistrial after the
government had failed to offer evidence in rebuttal regard-
ing Marcantonio’s relationship with Aleman,
App. 16
That the possible bias of a witness which may affect
credibility is a proper and critical area of exploration by
oross-examination is beyond question, Defendants now ar-
gue that the error was that the government did not follow
the question up with evidence to demonstrate a basis for the
question. However, the record suggests that during trial,
defense counsel did not want any rebuttal government evi-
dence offered on that issue and had previously sought ex-
clusion of all evidence about fear of Aleman, The govern-
mont’s rebuttal evidence cannot be perceived as being bene-
ficial to Aleman’s case, Although at side bar government
counsel cautiously mentioned the possibility always exist-
ing that the witness when actually called might testify to
a different version than recorded in his prior statement,
the good faith of the government was not seriously ques-
tioned at trial, Defense counsel helped avoid that possible
rebuttal evidence damaging to him during trial, but now
seeks to have it the other way,
In the circumstances of this case, we see no reversible
error in the incomplete impeachment, The question was
not pursued by the government, The defendants failed to
sook available remedios from the trial court to strike the
question or give the jury a cautioning instruction, This
case is in sharp contrast to those cases in which a quostion
without any factual basia had been used before a jury more-
ly because of the prejudicial suggestion emanating from
the question itaelf, United States v. Harris, 542 F.2d 1288,
1808 (7th Cir, 1976), cert, denied, 480 U.S, 934 (1977), Tn
any event this one unanswered question about fear of the
defendant put to a witness in an attempt to impeach a gov-
ernment witness could only be loat in many days of trial
in which substantial evidence of guns, threats, personal
abuse, and home robberies abounded, The possible fear of
the witness was not again suggested in any way to the
App. 17
jury. We cannot agree with defendants that the case
against Aleman was weak and that therefore the question
assumed some unusual critical significance. Sufficiency of
the evidence was not an issue on appeal,
It is next claimed that it was error to admit into evi-
dence the small book of names and telephone numbers
seized by officers at Harder’s house in the room occupied
by Miroff and Powers as house guests, Inventory lists of
the stolen Indianapolis property, partly in the handwrit-
ing of Miroff and partly in the handwriting of Powers,
were found along with this book, The Indianapolis stolen
property was also part of their luggage, Defendants first
argue that the foundation laid to permit the book's admis-
sion into evidence was inadequate, We believe the book's
connections with Miroff were sufficient, A handwriting ex-
pert testified that part of the book, though not the relevant
part, was in the handwriting of Miroff, On one page of tho
book three telephone numbers were found next to the name
‘‘Harry,’’ cireumatantially Aleman, Independent evidence
established that two of the numbers were those of a restau-
rant and a club which Aleman frequented, Telephone com-
pany records which went back to 1976 revealed that the
third number had been registered to a Ruth Aleman on
Concord in Melrose Park, There was teatimony that de-
fondant Aleman lived on Concord in Melrose Park in 1972
and 1978, The book tended to corroborate the enterprise
relationship between Aleman and Miroff testified to by Al-
meida, Thia eatablishes an adequate foundation to find the
evidence relevant, Fed, R, Evid, 401, 402, Any weakness
in that regard was a matter of weight not relevancy,
Defendants further contend that the book should not be
admitted to corroborate this enterprise relationship be-
cause the book ia hearsay when used to establish this rela-
App. 18
tionship. We disagree. The relevant listing in the book
asserted that ‘‘Harry’’ could be reached at one of three
numbers. The listing had value without regard to the
veracity of that assertion. The listing was not offered for
its truth, but to show Miroff’s acquaintance with Aleman.
Independent evidence connected Miroff with Aleman based
on the book. The book was not relied on to show ‘‘ Harry’s’’
phone number, only to indicate that Miroff had knowledge
of someone named ‘‘Harry’’ at the relevant time. The addi-
tional evidence eliminated the hearsay dangers. The book
was properly admitted. McCormick on Evidence 1249, at
592 (2d ed. 1976) ; Note, 44 Mich. L. Rev. 480, 481 (1945).
Aleman also questions the admission into evidence of
the testimony of an investigator for the Chicago Police
Department that on a particular occasion he kept Aleman
under observation. The officer testified that, about two
weeks after the Indianapolis robbery, while having lunch,
he saw Harder and his house guests, Miroff and Powers,
together in a restaurant. A few minutes later he saw
Harder leave that restaurant with Aleman and go to an-
other restaurant where they remained for about an hour.
When the officer was asked what he did on that occasion,
he replied that he ‘‘kept Aleman under observation,’’ and
followed him west on a particular street. No objection was
made to the question. Defendants claim that the answer
engendered prejudicial error because it suggested Aleman
was someone the police had reason to surveil. The ques-
tion and answer cannot constitute plain error. The testi-
mony only completed what the officer had observed on one
occasion between the principals. Even had a defense ob-
jection been timely made at trial instead of on appeal,
there would have been no error in overruling it.
Separate issues are raised as to Foresta by the claim
that he was sentenced four times for the same offense.
App. 19
He received a state sentence for the Indianapolis robbery.
That same robbery was also a factor in Count I, the con-
spiracy; Count II, the substantive racketeering violation;
and also in Count III, the transportation of the stolen
Indiana property. The trial court made no comment about
whether the federal sentence would be concurrent or con-
secutive with the state sentence. Foresta argues that the
government should be estopped from bringing the prosecu-
tion, or that in the alternative the case should be remanded
for resentencing with credit to be allowed for the state
sentence. He also complains that federal authorities co-
operated with the Indiana prosecutors. We do not see that
the Indiana conviction precludes the federal prosecution.
There is no double jeopardy. Not only are different sover-
eignties involved, but the crimes are separate and distinct.
The Indianapolis robbery constituted only one of numerous
overt acts in the conspiracy charge and one of four racket-
eering acts alleged in Count II. Count III was not a prose-
cution for the Indianapolis robbery, but for transporting
the loot from that robbery in interstate commerce.
The dual sovereignty doctrine of Abbate v. United
States, 359 U.S. 187, 194 (1959), and Bartkus v. Illinois, 359
U.S. 121 (1959), remains the law; state and federal prose-
cutions based on the same facts are not constitutionally
prohibited. United States v. Wheeler, 435 U.S. 313, 316-22
(1978). The doctrine simply means that the same single
act of a defendant may constitute more than one offense
as he may have violated both federal and state laws for
which he may be prosecuted. The dual sovereignty doctrine
is subject to the qualification, however, that a state prose-
cution cannot be used merely as a cover and a tool of fed-
eral authorities. Bartkus, 359 U.S. at 123-24. That an FBI
Special Agent testified at Foresta’s Indiana trial and a
federal prosecutor was listed as a possible state witness
App. 20
does not alone turn the state trial into a sham. Law en-
forcement cooperation between state and federal authori-
ties is a welcome innovation. Instead of cooperation For-
esta views it as federal ‘‘orchestration’’ of state authori-
ties to produce a robbery conviction upon which to develop
a RICO indictment.: We do not find federal ‘‘orchestra-
tion’’ in the record. Indiana authorities were merely per-
forming their own public duty in prosecuting Foresta for
burglarizing the home of a local doctor. State authorities
need not defer the performance of their own local obliga-
tions because of the possibility that the federal authorities
might in the future pursue the interstate aspects of the
crime.
Nor is there any need to return Foresta for resentencing.
Under 18 U.S.C. § 3568, a federal sentence commences to
run when the defendant is received at a place of confine-
ment for service of the sentence. Under that section the
computation of sentence credits is computed by the Attor-
ney General, not the sentencing judge. The sentencing
judge has no power to make a federal sentence concurrent
‘ with a prior state sentence. Under 18 U.S.C. § 4082, it is
the Attorney General who designates the place of confine-
ment. The sentencing judge may only recommend that the
Attorney General designate a state institution as a place
for service of the federal sentence. If the recommendation
is followed, then the state and federal sentences in effect
become concurrent. United States v. Allen, 588 F.2d 183,
185 (5th Cir. 1979). Such a recommendation is entirely dis-
cretionary with the sentencing judge. That there is a
factual relationship between the state and federal cases
does not require that the trial judge’s discretion be exer-
cised in any particular way. No recommendation was made
in this case.
App. 21
Aleman and Foresta also raise a severance issue. Prior
to trial Aleman and Foresta™ sought severance of Counts
VIII and IX which charged Foresta with possessing and
transporting a firearm in commerce after having been pre-
viously convicted of robbery by assault, a felony, in viola-
tion of 18 U.S.C. § 922(g)?* and 18 U.S.C. app. § 1202(a)
(1). The motion was denied. Foresta’s prior felony con-
viction thus became necessarily an element of the govern-
ment’s proof. Defendants claim the introduction of the
admission of evidence of that conviction constituted error,
relying on United States v. Phillips, 401 F.2d 301 (7th Cir.
1968), and United States v. Ostrowsky, 501 F.2d 318 (7th
Cir. 1974). In those cases, in which evidence of prior crime
was admitted for other purposes, it was a matter of the
15 The government raises some question about the manner in
which Foresta moved for severance as at trial he joined in Aleman’s
motion which was not tailored to his own claims as they appear on
appeal, but we need not consider those circtumstances.
16 The pertinent part of 18 U.S.C. § 922(g) provides as follows:
(g) It shall be unlawful for any person—
(1) ... who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one
year ;
x x a
to ship or transport any fierarm or ammunition in interstate
or foreign commerce.
17 The pertinent part of 18 U.S.C. app. § 1202(a) provides as
follows:
(a) Any person who—
(1) has been convicted by a court of the United States or
of a State or any political subdivision thereof of a
felony ...
* * *
. . who receives, possesses, or transports in commerce or
affecting commerce, after the date of enactment of this Act,
any firearm shall be fined not more than $10,000 or im-
prisoned for not more than two years, or both.
App. 22
trial judges’ discretion to admit the evidence or to limit
its scope. In the present case the prior conviction is an
element of the crime. Its admission was not a matter of
the trial court’s discretion. No details about Foresta’s
prior robbery by assault were explored. Also, no reference
was made during trial before the jury that Foresta’s prior
conviction of robbery was in fact ‘‘robbery by assault.’’
The jury was instructed to give separate consideration to
each defendant and to each count. The jury obviously did
this as Aleman was acquitted on two firearms charges. The
criminal record involved was not Aleman’s and he was not
shown to have been involved in any way in Foresta’s other
robbery. The jury was further charged that Foresta’s prior
conviction should not in any way be considered as proof of
the fact that he had committed any of the offenses charged
in this indictment. Defendants doubt the efficacy of those
limiting instructions. Under our jury system, however, it
is fundamental that we reasonably trust juries to make
factual determinations in accordance with the court’s in-
structions. United States v. Pacente, 503 F.2d 543, 548 (7th
Cir.) (en banc), cert. denied, 419 U.S. 1048 (1974). The
circumstances of this case do not suggest that the jury dis-
regarded the court’s instructions.
Severance could have avoided that issue, but we find no
clear abuse of the trial court’s discretion in denying the
motion under Rule 14 of the Federal Rules of Criminal
Procedure. United States v. Papia, 560 F.2d 827, 840 (7th
Cir. 1977). Foresta’s gun as alleged in Counts VIII and
IX was also involved in both Counts I and II. Its transpor-
tation was alleged as an overt act in the conspiracy, Count
I, and it was evidence of an act of racketeering activity in
Count II. There was no necessity in this case to go back
over much of the same gun evidence in separate trials.
There has been no ‘‘strong showing of prejudice’’ as to
either defendant. United States v. Kepal, 552 F.2d 1266,
1272 (7th Cir.), cert. denied, 434 U.S, 970 (1977). Other
App. 23
reviewing courts lend support to our view that severance
is unnecessary in somewhat similar circumstances. United
States v. Roe, 495 F.2d 600, 604 (10th Cir.), cert. denied,
419 U.S. 858 (1974); United States v. Lee, 428 F.2d 917,
920 (6th Cir. 1970), cert. denied, 404 U.S. 1017 (1972);
United States v. Abshire, 471 F.2d 116, 118-19 (5th Cir.
1972).
The final issue concerns Aleman’s contention that his
sentence, a total of 30 years on all counts, was excessive.
He claims the record contains no explanation for the sen-
tence imposed. None is required, but some explanation does
appear. The reasons for the sentence are apparent and
fully justify the exercise of the court’s sentencing discre-
tion. We will not interfere. United States v. Hansen, 583
F.2d 325, 334 (7th Cir.), cert. denied, 99 S.Ct. 283 (1978).
The trial judge said he considered home invasions to be a
most serious offense. Aleman was shown to be the head of
this interstate enterprise of armed home robbery in which
victims were threatened and abused. Aleman also had one
prior conviction for which he had received probation. To
compare sentences in other cases is ordinarily fruitless and
it is in this case. Lesser sentences imposed on others in
certain other prior cases apparently were inadequate to
serve as deterrents to Aleman and Foresta. Nor does Ale-
man profit by comparing his sentence with the sentence
Foresta received. Although Foresta had a serious prior
conviction and was convicted on several additional counts,
Aleman was the obvious proprietor of their enterprise,
now no longer in business.”®
AFFIRMED.
18Tn its brief the government brings to our attention that it filed
Petition for Dangerous Special Offender Sentencing pursuant to 18
U.S.C. § 3575 and offered to prove that Aleman had participated
in five murders in recent years. The petition was denied, and not
made part of the record. Those allegations are totally unsupported
in the record before us and are therefore totally ignored.
App. 24
Swyacert, Circuit Judge, dissenting. In United States
v. Greywace, 603 F.2d 682, 690 (7th Cir. 1979), I set forth
my basic view on the issue of the extension of the term
‘‘enterprise’’ as used in the Racketeer Influenced and Cor-
rupt Organizations Act (RICO) beyond commercial enti-
ties. The same question is before us here and, thus, I see
no reason to repeat that view. Additional comment is neces-
sary, however, because the cases involve ‘‘enterprises’’
that are different in nature.
In Greywace this court was concerned with a city police
department, concededly a legitimate entity, albeit not a
commercial or business type of organization. Here we are
confronted with a so-called ‘‘pattern’’ of criminal activity
—the robbing of homes. To urge, as the Government did
in Greywacz, that a police department is an ‘‘enterprise’’
within the meaning of the statute, although farfetched and
impermissible by any reasonable interpretation of the
statute, has some semblance of logic to it. Here, to main-
tain, as the majority does, that the pattern of criminal ac-
tivity engaged in by Aleman and his associates is an ‘‘en-
terprise’’ within the meaning of the statute is to turn logic
on its head.
In order to reach the majority’s conclusion that such an
enterprise exists, we are required to assume that the de-
fendants were infiltrating their own unlawful enterprise
through a ‘‘pattern of racketeering activity.’? To my way
of thinking, this assumption is absurd. To infiltrate an
enterprise, that is, ‘‘to conduct or participate . . . in the
conduct of such enterprise’s affairs [section 1962(c)],’’
the enterprise must preexist before it is infiltrated by
racketeering. Under the facts and the majority’s reason-
ing based on those facts, the enterprise and the racketeer-
ing are one and the same. The racketeering defines the
enterprise and the enterprise comprises the racketeering.
aa
App. 25
The majority’s faulty reasoning is illustrated by its
statement that, ‘‘the Act is not restricted to members of
organized crime.’’ .This misses the point. The point is:
What meaning did Congress intend to give the term ‘‘en-
terprise’’? Following the above quoted sentence, the ma-
jority then says: ‘‘Although the stated purpose of the
Organized Crime Act, of which RICO is a part, is to eradi-
cate organized crime, the statute itself does not require
proof that the defendant or the enterprise are connected
with organized crime.’’ Not only is this statement a non
sequitur, but it again misses the point on which the case
turns. Even taken as true, it does not relate to the question
before us.
I believe that the recent Sixth Circuit opinion in United
States v. Sutton, No. 78-5134 (6th Cir. Sept. 4, 1979), cor-
rectly decides this very issue. The facts are analogous, and
the Government’s contentions are the same. Judge Merritt
has offered, with admirable clarity, an analysis that is
irrefutable.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
ee
App. 26
APPENDIX 2 o
Opinion by Judge Wood
Judge Swygert dissenting
UNITED STATES COURT OF APPEALS
For The Seventh Circuit
Chicago, Illinois 60604
October 30, 1979
Before
Hon. Luther M. Swygert, Cireuit Judge
Hon. William J. Bauer, Circuit Judge
Hon. Harlington Wood, Jr., Circuit Judge
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 78-1782 & 78-1783 vs.
HARRY ALEMAN and LEONARD FORESTA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 77-Cr-689
Stanley Roszkowski, Judge
This cause came on to be heard on the transcript of the
record from the United States District Court for the North-
ern District of Illinois, Eastern Division, and was argued
by counsel.
On consideration whereof, it is ordered and adjudged by
this court that the judgment of the said District Court in
this cause appealed from be, and the same is hereby,
AFFIRMED, in accordance with the order of this court
entered this date.
App. 27
APPENDIX 3
SUPREME COURT OF THE UNITED STATES
No. A-427
HARRY ALEMAN, ET AL..,
Petitioners,
v.
UNITED STATES
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
Uvon Conswweration of the application of counsel for
petitioner(s),
Ir Is Onperep that the time for filing a petition for writ
of certiorari in the above-entitled cause be, and the same
is hereby, extended to and including December 28, 1979. --
/s/ John Paul Stevens
Associate Justice of the Supreme
Court of the United States
Dated this 21
day of November, 1979.
esi
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.