# Petition — L'Hoste v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2469%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 833 ## Text IN THE Supreme Court of the United States OCTOBER, 1979 No. 79-1898 ROBERT J. L’HOSTE, ET AL, Petitioners, versus UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JULIAN R. MURRAY, JR. MURRAY, MURRAY, ELLIS, BRADEN & LANDRY Attorney for Petitioners 612 Gravier Street New Orleans, Louisiana 70130 [504]581-3141 si) INDEX Table of Authorities Opinions Below Jurisdiction Questions Presented Constitutional and Statutory Provisions Involved Statement of the Case Statement of Facts Reasons for Granting Writ Argument I Argument II Artument III Conclusion Certificate APPENDIX United States v. L’Hoste, 609 F.2d 796 (Sth Cir., 1980) United States v. L’Hoste, Slip Opinion Comments of Judge Gordon on Granting a New Trial Indictment oN ANA AR BReUmDNRllCUDNOCOWN — eet eo ~~ JS h Ww il TABLE OF AUTHORITIES Cases Page Hamling v. United States, 418 U.S. 87 (1974) 9,10 Howard v. Federal Crop Ins. Co., 540 F.2d 695 (4th Cir., 1971 17 Russell v. United States, 369 U.S. 749 )1962) 9,10 United States v. Arthur, 544 F.2d 730, (4th Cir., 1976) 2, 8, 12, 13 United States v. Beacon Piece Dying & Finishing Co., 455 F.2d 216 (2nd Cir., 1972) 17 United States v. Diecidue, 603 F.2d 535, (Sth Cir., 1979) 9 United States v. Huber, 603 F.2d 387 (2nd Cir., 1979) 3, 8, 14, 16 United States v. James, 576 F.2d 1131 (Sth Cir., 1978) 5 United States v. L’Hoste, 609 F.2d 796 (Sth Cir., 1980) 1,9, 10, 12, 16 United States v. Liss, 137 F.2d 995 (2nd Cir., 1943) 11 United States v. Mandel, 591 F.2d 1347 (4th Cir., 1979) 2,8, 12 Statutes Page 18 U.S.C. §371 5 18 U.S.C. §656 13 18 U.S.C. §1341 11 18 U.S.C. §1952 11 18 U.S.C. §1961 11 18 U.S.C. §1962 5,11, 14 itt Table of Authorities [Continued Statutes Page 18 U.S.C. §1963 3,6,7, 14 18 U.S.C. §3563 15 18 U.S.C. §3651-3656 16 28 U.S.C. §1254(1) ty 2 Federal Rules of Criminal Procedure 7(c)(1) 2, 3,5,7. 8.9.10, 11 La.R.S. 14:118 11 United States Constitution Amendment V 3 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. ROBERT J. L’HOSTE, R. J. L HOSTE AND COMPANY, INC., CLARENCE EUGENE ROGERS AND MARVIN COCHRAN Petitioners, versus UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT The petitioners, Robert J. L’Hoste, R. J. L’Hoste and Company, Inc., Clarence Eugene Rogers and Marvin Cochran, pray that a Writ of Certiorari issue to review the opinion and judgment of the United States court of Appeals for the Fifth Circuit rendered in these proceedings on January 10th, 1980, rehearing denied April 14, 1980. 2 OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit is reported as United States v. L'Hoste, et al, 609 F.2d 796 (5th Cir. 1980). That opinion appears at Appendix A, infra. The denial of the petition for rehearing and rehearing en banc was denied on April 14, 1980, and has not yet been officially reported, but the slip opinion appears at Appendix B, infra. JURISDICTION The judgment of the United States Court of Appeals for the Fifth Circuit was entered on January 10, 1980. The judgment of denial of the petition for’ rehearing and rehearing en banc was entered on April 14, 1980. The jurisdiction of this Court is invoked under 28 U.S.C., §1254(1). QUESTIONS PRESENTED 1. Does Rule 7(c)(1) of the Federal Rules of Criminal Pro- cedure requiring that an indictment be a ‘‘plain, concise and definite written statement’ of the essential facts constituting the alleged offense add requirements to an indictment more restric- tive than the minimal Constitutional requirements as set forth by this Court; and if so, did the indictment in the present case vio- late the provisions of Rule 7(c)(1)? 2. Was the Court’s ruling in the present case to the effect that the defendants were not entitled to a jury instruction distinguish- ing between unlawful bribery and ‘‘goodwill expenditures’’ in conflict with the Fourth Circuit cases of United States v. Arthur, 544 F.2d 730 (4th Cir. 1976) and United States v. Mandel,591 F.2d 1347 (4th Cir. 1979)? 3 3. Was the Fifth Circuit’s ruling in this case to the effect that the forfeiture provisions of 18 USC §1963(a) are mandatory rather than discretionary, in concert with the Second Circuit case United States v. Huber, 603 F.2d 387 (2nd Cir. 1979). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the Government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such state- ment. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary violation of the statute, rule, regulation, or other provision of law which the defendant as alleged therein to have vieclated. Federal Rules of Criminal Procedure, Rule 7(c)(1). 2. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand Jury, except in cases arising in the land or naval forces, or in the militia, when actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensa- tion. United States Constitution, Amendment 5. 3. § 1963. Criminal penalties (a) Whoever violates any provision of section 1962 of this 4 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, operat- ed, controlled, conducted, or participated in the conduct of, in violation of section 1962. (b) In any action brought by the United States under this section, the district courts of the United States shall have juris- diction to enter such restraining orders or prohibitions, or to take such other actions, including, but not limited to, the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to forfeiture under this section, as it shall deem proper. (c) Upon conviction of a person ‘nder this section, the court shall authorize the Attorney General to seize all property or other interest declared forfeited under this section upon such terms and conditions as the court shall deem proper. If a property right or other interest is not exercisable or transferable for value by the United States, it shall expire, and shall not revert to the convicted person. All provisions of law relating to the disposition of prop- erty, or the proceeds from the sale thereof, or the remission or mitigation of forfeitures for violation of the customs laws, and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions hereof. Such duties as are imposed upon the collector of customs or any other person with respect to the disposition of property tinder the customs laws vhall be performed under this chapter by the Attorney General. The United States shall dispose of all such property as soon as commercially feasible, making due provision for the rights of innocent persons. 5 STATEMENT OF THE CASE On December 1, 1977, defendants were charged in a forty page indictment with conspiracy to violate various Federal and State laws in violation of Title 18 USC 371 and « substantive violation of the Rico Statute, Title 18 USC §1962. Various pre-trial motions were filed, including a motion to dismiss the indictment, based on over-breadth and vagueness, in violation of Rule 7(c)(1) of the Federal Rules of Criminal Procedure. Prior to the hearing of this motion, however, the Government filed a superseding indictment charging the same violations of federal law. Defendants renewed their motion to dismiss the new indict- ment, which motion was denied, and the case went to trial on March 13, 1978. Defendants were subsequently convicted on both counts of the indictment. However, this conviction was overturned by the trial court stating inter a/ia, that the indict- ‘ment was too broad, complex and impossible to defend against. See Appendix C. On June 6, 1978, the Government filed a second superseding indictment with even broader allegations and language than the previous one which was allotted to a different judge. See Appendix D. Defendants again moved to dismiss the indict- ment on the grounds that it violated the mandate of Rule 7(c)(1) that an indictment be a ‘‘plain, concise and definite’’ statement. This motion was subsequently denied. Defendants sought relief by filing a petition for writ of mandamus with the Fifth Circuit Court of Appeals, which was denied on July 17, 1978. A second trial was commenced on July 24, 1978. How- ever, during the course of this trial, both counsel and the court became aware of the decision of the Fifth Circuit Court of Appeals in United States v. James, 576f.2d 1131 (Sth Cir. i978), which lead to a mistrial on July 28, 1978. A new trial began three days later which resulted in a guilty verdict on both counts as to all defendants. 6 Defendants subsequently filed an appeal with the Fifth Cir- cuit Court of Appeals (No. 78-5593) seeking to have their con- victions overturned on various grounds including the over- breadth of the indictment. The Government filed writs regard- ing the refusal of the tiral court to invoke the forfeiture pro- visions of 18 USC §1963 and the two matters were consolidated. Subsequently, on January 10, 1980, a three judge panel consist- ing of Judges Tjoflat, Vance and Allgood rendered a decision affirming defendants convictions and granting the Govern- ment’s request for a Writ of Mandamus to require the trial judge to invoke the forfeiture provisions. Defendants then applied for a rehearing and a rehearing en banc, which was denied on April 8, 1980, with four judges dis- senting from the denial of the rehearing en banc. STATEMENT OF FACTS The gist of the charges against the defendants, is that they participated in a scheme whereby their company (R. J. L’Hoste and Company, Inc.) would receive emergency sewer repair jobs in exchange for ‘‘kickbacks’’ paid to certain local government officials. These alleged kickbacks took the form of vacations, free lunches, campaign contributions, and equipment rentals. The time frame of the alleged scheme spans an eight year period beginning on or about April 23, 1970, through December 1, 1977. (Appendix D.) During the course of the trial, the defense admitted provid- ing some local officials with free lunches, vacation trips, etc. The only thing at issue therefore was the equipment rental scheme. In order to prove this alleged conspiracy, the Govern- ment relied solely on the testimony of two witnesses, Fred Hoth and Carl Calamia. Each of these witnesses were given immunity in exchange for their testimony. > Petitioners maintained throughout the trial and throughout the post trial proceedings, and continued to maintain, that the testimony of each of these two witnesses was filled with lies and contradictions and was completely discredited. Therefore, the evidence relating to the lunches, trips, etc. was critical during the trial. The Government contended throughout the trial that the giving of these favors constituted bribery. Petitioners, on the other hand, maintained that they were merely legitimate business expenditures designed to create goodwill with their customers. A complete understanding of the difference between bribery and goodwill expenditures was, therefore, crucial to the jury. The trial court, however, did not instruct the jury in this regard. During the sentencing phase of the proceedings, the trial court indicated that it believed the forfeiture provisions of the RICO Statute (18 U.S.C. §1963) were discretionary, rather than mandatory. He, therefore, refused to invoke the provisions against petitioners. The Government then sought supervisory writs from the Fifth Circuit Court of Appeals on the grounds that the provisions of §1963 were mandatory and that the trial judge had no discretion in the matter. Subsequently, the Fifth Circuit agreed with the Government and ordered the trial court to invoke the forfeiture provisions. REASONS FOR GRANTING THE WRIT 1. The language of Rule 7(c)(1) of the Federal Rules of Criminal Procedure requiring that an indictment be a ‘‘plain, concise, and definite written statement of the essential facts constituting the offense charged’’ has never been interpreted by this or any other appellate court. Although often cited, the legal requirements of the terms ‘‘plain, concise, and definite’ have never been enunciated. It is, therefore, imperative for a defendant to know whether this rule actually means what it says or is just a superfluous repetition of the minimal constitutional standards. 2. The decision of the Fifth Circuit in this case, is in direct conflict with the decision of the Fourth Circuit in the cases of United States v. Arthur, 544 F.2d 730 (4th Cir., 1976) and United States v. Mande/,591 F.2d 1347 (4th Cir., 1979). 3. The Fifth Circuit ruled in this case that the forfeiture pro- visions of 18 U.S.C. §1963(a) were mandatory and that the trial judge had no discretion as to whether they should be applied to any given defendant. Petitioners maintain that, with the increasing use of the RICO Statute by the Government, this question is one which will be raised again and again and should be decided by this Court. Additionally, the Fifth Circuit’s resolution of this matter, is in conflict with the decision of the Second Circuit in the case of Unted States v. Huber, 603 F.2d 387 (2nd Cir., 1979). ARGUMENT 1. DOES RULE 7(c)(1) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE REQUIRING THAT AN INDICTMENT BE A ‘‘PLAIN, CONCISE AND DEFINITE WRITTEN STATEMENT’’ OF THE ESSENTIAL FACTS CONSTITUTING THE ALLEGED DEFENSE PUT A HIGHER STANDARD ON THE DRAFTING OF AN INDICTMENT THAN DO THE CONSTITUTIONAL REQUIREMENTS AS SET FORTH BY THIS COURT; AND IF SO, DID THE INDICTMENT IN THE PRESENT CASE VIOLATE THAT STANDARD? Throughout all of the proceedings below, including both the trial and appellate levels, petitioners have complained that the indictment in the present case did not comport with the requirements of Rule 7(c)(1) of the Federal Rules of Criminal Procedure that an indictment be a ‘‘plain, concise and definite written statemeni of the essential facts constituting the alleged offense’. Each time the point was raised, the presiding judge or 9 judges would review the indictment in light of the constitution- al requirements that it fairly inform the defendant of the charge or charges against him and enable him to plead an acquittal or conviction in bar to any future prosecution for the same offense. The following language from the Fifth Circuit’s opinion in this case is indicative of how virtually all the Courts have handled this argument: We are also convinced that the indictment does not trans- gress Rule 7(c)(1). The allegations clearly put the defend- ants on notice of the offenses charged, advised them of the facts giving rise to those offense, and furnished an adequate foundation for a plea of double jeopardy in the event of a future prosecution of the defendant for the same conduct. United States v. L'Hoste,609 F.2d 796, 801 (Sth Cir., 1980). As can be seen, no mention is made of the requirement that the indictment be ‘“‘plain, concise and definite’’. This argument is not merely one of semantics. Petitioners maintain that the requirerents of Rule 7(c)(1) are different from and in addition to, the minimal constitutional standards as set forth by this Court. Yet, no court has ever addressed this argument directly. 1 The traditional attacks against the vagueness and overbreadth of an indictment stem from the fact that they gave so little information that the defendant was unable to prepare his de- fense and/or protect against double jeopardy, e.g. Hamiing v. United States,418 U.S. 87 (1974) and Russell v. United States, 1 Petitioners have shepardized Rule 7(c)(1) and have found no cases which either analyze or interpret its language. To be sure, it has been applied numerous times but almost always in tandem with constitutional standards. E.G. United States v. Diecidue, 603 F.2d 535 (5th Cir., 1979). The few cases which do rely on Rule 7(c)(1) exclusively, simply state that the indictment either was or was not plain and concise. No court has ever analyzed the Rule to determine what it requires. 10 369 U.S. 749 (1962). Those constitutional concepts loosely co- incide with the Rule 7(c)(1) requirement that the indictment be plain and definite. Consequently, the Rule traditionally got carried along with the cases analyzing the constitutionality of the indictment. Indeed, that is exactly what happened in the present case. Notwithstanding the petitioners’ reliance upon Rule 7(c)(1), the Fifth Circuit started off its analysis by applying the constitutional test of an indictment as enunciated by this Court in Ham/i»g,supra. See United States v. L'Hoste,supta at 800. This ‘‘two prong test’’ is a constitutional test and docs not deal with Rule 7(c)(1). The traditional argument made by defendants is that the indictment has failed to supply an essential element, and is therefore defective. What about the indictment that does have all of the essential elements, but has alleged so many elements, over such a long period of time, supposedly violating so many statutes, that it defies understanding by the court or the jury. Such an indictment could theoretically meet the ‘‘two prong’’ Russell-Hamiingtest and yet still violate the provisions of Rule 7(c}(1) because it is not plain, concise, and definite. Petitioners suggest that this type of indictment is a brand new phenomenon that is going right past the courts without any- type of meaningful analysis. This is the age of the so-called ‘white collar crime’’. These crimes are not like the bank -tobberies, kidnappings, drug sales, etc. with which the courts and juries have traditionally dealt. The potential complexity of these types of crimes gives rise to a new type of indictment such as seen in the present case. It does not suffice to say, as the Fifth Circuit did in the present case, that the indictmen’s ‘‘length and complexity (was) necessitated, we think, by the nature of the crimes charged’’. United States v. L'Hoste, supra at 800. The Government's ‘‘need’’ has no legitimate place in the considera- tion of Rule 7(c)(1). At the risk of being redundant, petitioners point out that the law says that an indictment must be plain, 11 concise and definite. It nowhere says that it can be confused, lengthy and vague if the crime being charged is a complex one. 2 If this Court or any appellate court had previously analyzed Rule 7(c)(1), independent of the broad constitutional standard which it encompasses, then petitioners would be relegated to an argument that the law was improperly applied in this case. But to the contrary, one of the most basic statutory provisions in our law has never been interpreted by any appellate court. The age of the ‘‘white collar crimes’’ demands that this statute be inter- preted so that the district courts, the Government, and defense counsel will be able to properly apply it. Trained counsel may be able to dissect an indictment so as to prepare a defense and protect the client against double jeopardy, as mandated by the Russe//-Ham/ing constitutional requirements, but only Rule 7(c)(1) can protect the defendant against the bewilderment which indictments such as the present one cause to juries. As Judge Jerome Frank said: We judges ought to take judicial notice of what every ordinary person knows about juries, and therefore to recognize that twelve citizens, casually summoned to serve as jurors, are not trained fact finders and can be easily bewildered . . . The need for safeguarding de- fendants from misunderstanding by the jury is particu- larly acute in conspiracy trials... United States v. Liss, 137 F.2d 995, 1003 (2nd Cir., 1943), cert. denied, 320 U.S. 773. 2 In making this point petitioners do not in anywise concede that the alleged crime required the complexity and multiplicity of charges set forth in the conspiracy count (and incorporated by reference in the substantive count). There was no legitimate reason for including all of the enumerated crimes within one conspiracy. The Government, the defense, and the Court well know that it is a fiction to believe that the complexity of the crime justifies the inclusion in one conspiracy count alleged violations of 18 U.S.C. §1962, Louisiana Revised Statute 14:118, 18 U.S.C. §1961(1)(a), 18 U.S.C. §1341, and 18 U.S.C. §1952. Assuming that the alleged crime was so com- plex that the Government felt that all of these statutes were violated, it could have broken them down into separ*> counts so that each charge would be a plain, concise, definite statem as required by Rule 7(c)(1). 12 2. WAS THE COURT'S RULING IN THE PRESENT CASE TO THE EFFECT THAT THE DEFENDANTS WERE NOT ENTITLED TO A JURY INSTRUCTION DIS- TINGUISHING BETWEEN UNLAWFUL BRIBERY AND ‘GOODWILL EXPENDITURES” IN CONFLICT WITH THE FOURTH CIRCUIT CASES OF UNITED STATES V. ARTHUR. 544 F.2d 730 (4th Cir., 1976) AND UNITED STATES V. MANDEL, 591 F.2d 1247 (4th Cir., 1979)? As noted previously, one of the main issues in this case was the distinction between goodwill business expendi- tures and bribery. This distinction was especially acute in this case because petitioners admitted to buying certain officials free lunches and airline tickets for vacation trips. They maintained throughout, however, that these were legitimate business ex- penditures designed to create and maintain goodwill among their customers. Originally, the trial court fashioned a jury instruction based upon the Fourth Circuit case of United States v. Arthur, 544 F.2d 730 (4th Cir., 1976) which distinguished between these types of expenditures and bribery. However, upon objection by the Government, the Court refused to use that instruction stating that the Louisiana law on bribery was different from that of West Virginia where the Arthur case originated. The trial court also refused to give the instruction requested by petition- ers regardir.g the same issue and based upon the same case. The Fifth Circuit upheld the judge's decision stating, inter a/ia, that: While this Court recognizes that all expenditures made by businessmen to public servants are not motivated by the criminal intent necessary for bribery, we cannot fault the district court for failing to articulate the difference between licit and illicit business expenditures in its charge to the jury. United States v. L'Hoste, supra at 808. 13 This reasoning runs directly contra to the Fourth Circuit’s de- cision in United States v. Arthur,supra. In that case, the defend- ant was the president of a federally insured bank in West Virginia and the evidence disclosed that during an approximate three-year period he took part of the bank’s money to ‘*. . . entertain, do favors and buy gifts for state and party officials who might be in- fluential in securing government deposits for the bank.’’ Jd. at 733. The Government maintained that the activity constituted bribery and was, therefore, a misapplication of the bank’s funds in violation of 18 U.S.C. §656. The defendant responded that he was not attempting to bribe anyone but rather used the money ‘‘. . . for the purpose of creating an maintaining goodwill to- ward the bank among potential customers and persons who might be inuential with potential customers.’’ Jd. at 733. The Fourth Circuit reversed because it found the trial court’s jury instructions erroneous ‘*. . . in that it failed to adequately distinguish conduct which amounts to bribery from conduct which is legally innocent.’’ Jd. at 734. The Court noted that: It does not follow . . . that the traditional business prac- tice of promoting a favorable business climate by enter- taining and doing favors for potential customers becomes bribery merely because the potential customer is the government. Such expenditures, although inspir- ed by greater government business, are not intended as a quid pro quo for that business. They are in no way conditioned upon the performance of an official act or pattern of acts or upon the recipient’s expressed or implied agreement to act favorably to the donor when necessary. Jd. at 734. It cannot be emphasized too strenuously here that this point is important both to the present prosecution and to all federal bribery prosecutions. Why should a defendant in the Fourth Circuit be entitled to an Arthurtype instruction when a de- fendant in the Fifth Circuit is not? This point takes on added 14 significance when viewed in light of the post-Watergate trend towards white collar prosecution. It is therefore, essential that there be uniformity in the application and the prosecution of these types of statutes. 3. WAS THE FIFTH CIRCUIT’S RULING IN THIS CASE TO THE EFFECT THAT THE FORFEITURE PRO- VISIONS OF 18 U.S.C. §1963(a) ARE MANDATORY RATHER THAN DISCRETIONARY, IN CONFLICT WITH THE SECOND CIRCUIT CASE UNITED STATES V. HUBER, 603 F.2d, 387 (2nd Cir., 1979)? The defendents in this case were convicted of the so-called RICO statute, 18 U.S.C. §1962. The jury made a factual deter- mination that the defendant, Robert]. L’ Hoste, maintained his two-thirds stock ownership in R. J. L’Hoste & Co., Inc. in viola- tion of Section 1962 and that said ownership afforded him influence over the company. The Government maintained that once the jury had made that determination the forfeiture of the said stock to the Government was mandatory under the pro- visions of 18 U.S.C. §1963(a). The defense countered that the language of that statute was clear that the Court had discretion and, although it had the right to forfeit, it was not required to do so. The trial court determined that it did have discretion and chose to exercise that discretion by not forfeiting the stock to the Government. The Fifth Circuit, however, reversed the trial court holding that the forfeiture provisions of the RICO statute were mandatory and that the trial court had no discretion in their application. This question was one of first impression by the Fifth Circuit and has not been decided by any other appellate court. Con- sidering the increased use of the RICO statute by federal prosecutors and the harsh and unusual nature of the forfeiture provisions, petitioners respectfully suggest that this issue is appropriate for consideration by this Court. 15 It is important to note here that the forfeiture provisions of the RICO statute partially repealed a law which has stood for ovtr one hundred eighty years. That law, 18 U.X.X. §3563, provides that: ‘‘No conviction or judgment shall work corrup- tion of blood or forfeiture of estate.’’ See United States v. Rubin, 559 F.2d 975 (Sth Cir., 1977). Although this Country has always had i» rem forfietures, it has never allowed, until‘ RICO, in personam forfeitures. United States v. Rubin, supra. Therefore, the application and interpretation of this statute is extremely important. This issue becomes even more crucial when viewed in light of the broad provisions of the RICO statute itself. All that is re- quired for conviction under RICO is two violations of enumer- ated state or federal offenses committed with ten years of each other. 18 U.S.C. §1961(5). As Judge Tate stated in his dissent- ing opinion in the denial of the rehearing in this case: I cannot at the present believe it was the intention of Congress to leave to a prosecutor alone the determination to achieve forfeiture of an accused15 property by prosecut- ing him under the Federal Racketeering Statute for what, as statutorily defined with regard to the present case, repre- sents only two or more violations of local bribery statutes or of somewhat esoterically applied federal crimes, themselves punishable by imprisonment or fine, but not by forfeiture. United States v. L'Hoste, denial of rehearing en banc, Appendix B. Judge Tate went on to say that: It is well to note, at this time, that no matter how isolated and minor two ‘‘racketeering’’ incidents might be in the context of the entire business conducted by the enterprise, the federal statute literally construed is violated, and the defendant’s entire interest in the enterprise is subject to forfeiture under the statute. I emphasize this, because it is not readily conceivable to me that the Congress intended automatic forfeiture of an entire ownership in a business enterprise, however and whenever acquired (whether by inheritance or by legitimate business operations), irrespec- 16 tive of the magnitude of the ‘‘racketeering’’ conduct in- volved. [did The only other court which has addressed this issue, did so indirectly. In discussing the defendant’s argument that the for- feiture provisions of the RICO statute violated the Eighth Amendment’s prohibition against cruel and unusual punish- ment, the Second Circuit noted that the trial judge has ‘‘a certain amount of discretion in avoiding draconiam (and per- haps potentially unconstitutional) applications of the forfeiture provisions. United States v. Huber,603 F.2d 387, at 397 (2nd Cir., 1979). Based upon that discretion, the Court rejected the defendant’s argument. Therefore, although this issue has only been addressed by two courts, each of them have reached dif- ferent results. It should be noted also that the Fifth Circuit not only ruled that the provisions of the RICO statute were mandatory, but it also ruled that they were not subject to the ‘‘suspension’’ pro- visions of the Federal Probation Act. (18 U.S.C. §3651-3656). Again, this issue has never been decided by this Court or any other appellate court. The Fifth Circuit could find no authority for its position but relied on the fact that there was no indica- tion that Congress intended to allow the suspension of for- feiture under the Federal Probation Act. United States v. L'Hoste, supra at 814. However, this reasoning does not take into account the clear language of the statute. 18 U.S.C. §3651 provides in part that: Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execu- tion of sentence .. .fEmphasis supplied.) 17 The word ‘‘sentence’’ is not limited to either imprisonment, fines, or forfeitures. Rather, it is broad enough to include all of them. In fact, it has already been interpreted to include fines. United States v. Beacon Piece Dying and Finishing Co., 455 F.2d 216, 217 (2nd Cir., 1972). There is no logical reason why it also should not be interpreted to include forfeitures. This is particularly true since forfeitures have never been favored in our law. Howard v. Federal Crop Insurance Corp., 540 F.2d 695 (4th Cir., 1971). In view of the importance of this issue and the unusual and disfavored nature of the forfeiture penalty, petitioners respect- fully suggest that this matter is appropriate for hearing before this Court. CONCLUSION For the above reasons, a Writ of Certiorari should be issued to review the judgment and opinion of the United States Court of Appeals for the Fifth Circuit. Respectfully submitted, MURRAY, MURRAY, ELLIS, BRADEN & LANDRY A Professional Law Corporation JULIAN R. MURRAY, JR. 612 Gravier Street New Orleans, Louisiana 70130 (504) 581-3141 Attorney for Petitioners 18 CERTIFICATE I HEREBY CERTIFY that a copy of the foregoing Petition for Writ of Certiorari has been med on the respondent by placing copies of same in the United States mail, postage prepaid, addressed to: Mr. John Volz Solicitor General of the United States Attorney United States Hale Boggs Federal Building § United States Department of 500 Camp Street Justice New Orleans, Louisiana 70130 Washington, D.C. | ae | , 1980. JULIAN R. MURRAY, JR. la APPENDIX ‘‘A’’ UNITED STATES v. L’HOSTE UNITED STATES of America, Plaintiff- Appellee, v. Robert J. L’HOSTE, R. J. L’Hoste & Company, Inc., Clarence Eugene Rogers and Marvin Cochran, Defendants-Appellants. In re UNITED STATES of America, Petitioner. Nos. 78-5593, 79-1606. United States Court of Appeals, Fifth Circuit. Jan. 10, 1980. Defendants were convicted in the United States District Court for the Eastern District of Louisiana, Charles Schwartz, Jr., J., of conspiracy and racketeering and they appealed. The Government petitioned for a writ of mandamus directing the district court to order forfeiture of one defendant’s interest in a company allegedly involved in racketeering. The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) the indictment was not unconstitutionally broad or vague; (2) defense counsel was not entitled to personally voir dire prospective jurors; (3) the Louisiana bribery statute pro- hibited the entertainment of public officials and favoring them with gifts in order that business expectations might be enhanced; (4) the district court did not err in reinstructing the jury on con- spiracy; and (5) the forfeiture provision of the racketeering statute was mandatory rather than discretionary. Affirmed in part; writ of mandamus to issue. 2a 1. Indictment and Information —71.-4[3] In prosecution for conspiracy and racketeering, indictment adequately informed defendants of pending charges and enabled them to plead acquittal or conviction to bar any future prosecu- tions for same offenses; furthermore, indictment did not violate single conspiracy rule. 18 U.S.C.A. §§ 2, 371, 1962(c). 2. Jury —131(1] Defense counsel was not entitled to personally voir dire prospec- tive jurors. Fed. Rules Crim. Proc. rule 24(a), 18 U.S.C.A. 3. Bribery—1[1] Practice of entertaining public officials and favoring them with gifts in order that business expectations might be enhanced could constitute violation of Louisiana bribery statute; bribery was not restricted to those acts made in anticipation of specific official action. LSA—R.S. 14:118. 4. Criminal Law —1152[1] Trial court is given broad discretion in weighing its jury instruc- tions and will not be reversed as long as charge correctly states substance of law. 5. Criminal Law —829(1], 830 Trial judge is under no obligation to give requested instruction that misstates the law, is argumentative, or has been covered adequately by other instructions. 6. Criminal Law —865(2] Where trial court reinstructed jury with portion of conspiracy 3a charge responsive to its inquiry, reminded jury of prior instruc- tions, and advised it to consider entire charge, including the sup- plementary part, as a whole, there was no error. 7. Forfeitures —3 Forfeiture of property involved in violation of racketeering statute was mandatory rather than discretionary. 18 U.S.C.A. § 1963(a). 8. Forfeitures —5 District court’s ability to set terms and conditions of forfeiture of property involved in racketeering is limited and any abuse of its discretion is subject to review of Court of Appeals. 18 U.S.C.A. § 1963(a) 9. Forfeitures —5 After jury returned guilty verdict on charges of conspiracy and racketeering, district court’s submission to jury of questions of whether defendant maintained his interest in company in violation of racketeering statute, and whether his interest in company afforded source of influence over any enterprise which he had established, operated, controlled, conducted or participated in conduct of in violation of racketeering statute formed adequate basis on which to order forfeiture of defendant’s interests in com- pany involving racketeering. 18 U.S.C.A. §§ 1962(c), 1963(a). 10. Forfeitures — 5 Federal Probation Act did not give district court power to sus- pend imposition or execution of forfeiture. 18 U.S.C.A. § 3651. 4a On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Louisiana. Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD,”* District Judge. TJOFLAT, Circuit Judge: Robert J. L’Hoste, R. J. L’Hoste & Company, Inc., Clarence Eugene Rogers, and Marvin Cochran appeal their convictions for conspiracy, 18 U.S.C. § 371 (1976)! and racketeering 18 U.S.C. §§ 2, 1962(c) (1976), 2 arising out of their involvement in sewer con- struction contracts for Jefferson Parish, Louisiana. They challenge the sufficiency of the indictment, the method .of jury selection, and the adequacy of the trial court’s instructions to the jury. Con- solidated with this appeal is the Government's petition for a writ of mandamus directing the trial court to order the forfeiture of L’Hoste’s interest in R. J. L’Hoste & Company, Inc. under 18 U.S.C. § 1963(a) (1976). See slip opinion 2295, page --- infra. We affirm the convictions and grant the petition for mandamus. * District Judge for the Northern District of Alabama, sitting by designa- tion. 1 18 U.S.C. § 371 provides: . If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner of for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the con- spiracy, is a misdeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. 2 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 or which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or col- lection of unlawful debt. 5a I The history of this prosecution is convoluted and repetitious. On December 1, 1977, the federal grand jury in the Eastern Di