# Petition — Aleman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1467%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 946 ## 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1467%3A1. Public record. Not legal advice.