# Opposition — Roza v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1166%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 907

## Text

2 OA ! “Tk =

No. 80-1200 MAR 28

ALEXANDER Lg
CLERK

Iu the Supreme Court of the Hnited States
OcTOBER TERM, 1980

FRANK VERNON ROZA, JR., PETITIONER |
Vz.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

WADE H. McCRreEE, JR.
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217

TABLE OF AUTHORITIES

Page
Cases:
Broadrick v. Oklahoma, 413 U.S. 601 .......... 4
Dunn v. United States, 442 U.S. 100 ............ 4
Huddleston v. United States, 415 U.S. 814 ...... 4
FR Fi BAUR: BEE FAS. Kose eck ese ecinoss 4
United States v. Aleman, 609 F. 2d 298,

GO, OE, Ge Ui, BO re ccccucercucncenner 3
United States v. Campanale, 518 F. 2d 352,

COGE , Ge Ge FE hab ecr oc cecewsences 3
United States v. Cappetto, 502 F. 2d 1351,

GOTe, Cee, SP Ue Fae aceccvecudcsccpeoces 3
United States v. Hawes, 529 F. 2d 472 .......... 3
United States v. Huber, 603 F. 2d 387,

Ry Se Er Uh its WET. sc bs5 0k wes cosvesce 3
United States v. Lovasco, 431 U.S. 783 ......... 3
United States v. Parness, 503 F. 2d 430,

COR, SO, BEM Wy BUD cee dk co odedescces 3
United States v. Powell, 423 U.S. 87 ............ 4

United States v. Provenzano, 620 F. 2d 985,
cert. denied, No. 80-78 (Oct. 14, 1980) ........ 5

(I)

Il
Page
Cases—Continued:

United States v. Sutton, Nos. 78-5134 to
78-5139, 78-5141 to 78-5143 (Dec. 3, 1980),
rev’g 605 F. 2d 260, petitions for cert. pending,
Elkins v. United States, No. 80-6058
(filed Jan.19, 1981), Hensley v. United
States, No. 80-6137 (filed Feb. 2, 1981),
Harris v. United States, No. 80-6147
(filed Jan 31, 1981), Holmes v. United
States, No. 80-6253 (filed Feb. 27, 1981),
Adams v. United States, No. 80-6254
(filed Feb. 27, 1981), Cravens v. United

States, No. 80-6272 (filed Mar. 2, 1981) ..... 4-5
United States v. Swiderski, 593 F. 2d 1246,

TSS Koc cb dccccacsakades 3
United States v. Turkette, cert. granted,

A eee 4

United States v. Zemek, 634 F. 2d 1159,
cert. denied, Carbone v. United States,
No. 80-900 (Feb. 23, 1981), Caliguri v.
United States, No. 80-6047 (Mar. 9, 1981),
petitions for cert. pending, Mazzuca v.
United States, No. 80-1517 (filed Mar. 6,
1981), Williams v. United States,
No. 80-6307 (filed Mar. 7, 1981), Janovich
v. United States, No. 80-6309 (filed
Se ED cs ik bose cae Oo ERR ee Dek eae e

Statutes and rule:

Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U.S.C. (& Supp. III)
TPM Wc donde bonne ues sews shares ames l

Page
Statutes and rule—Continued:

Pub. L. No. 91-452, 84 Stat. 923, 18 U.S.C.
| Nae OO Pe Pay aren Pee tee ae 4
18 U.S.C. (& Supp. IIT) 1961(1) ............ 4
Res SUE as be bk Sawa kone 0 000d 90 I
CE ee RN ane rene I
Oe COED hed p co Saeseeereeceeas 2
Pe SE SaR Se Sas twetweece cusp esaenses l
PSI MEE a Weds wince bcaheeescwad bee yekow l
SE Cis sb ctbead sk ekes weseaebnneaws 5

FO PEs GM Cs OP Sob iintevensceseviscdeedens 5

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-1200
FRANK VERNON ROZA, JR., PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. (& Supp.
II1) 1961 et seq., is unconstitutionally vague and overbroad.

1. Following a jury trial in the United States District
Court for the Northern District of California, petitioner
was convicted on one count of conducting an enterprise
througha pattern of racketeering activity, in violation of 18
U.S.C. 1962(c); one count of investing in an enterprise the
income derived from a pattern of racketeering activity. in
violation of 18 U.S.C. 1962(a): five counts of interstate
transportation of stolen property, in violation of 18 U.S.C.
2314; and one count of receiving stolen property that had
been transported in interstate commerce, in violation of 18
U.S.C. 2315. Petitioner was sentenced to 15 years’ impris-
onment and fined $25,000. In addition, petitioner's coin
business and a Ferrari automobile, which had been

(1)

2

involved in the racketeering offenses, were ordered to be
forfeited to the United States under 18 U.S.C. 1963(a)(1).
The court of appeals affirmed (Pet. App. la-9a).

The evidence at trial showed that between January and
August of 1978, petitioner’s co-defendants burglarized
three post offices in California and Washington, stealing
more than $400,000 in stamps, food coupons, and cur-
rency. The same group also attempted unsuccessfully to
commit burglaries at three other California post offices (RT
79, 893-896).' The stolen stamps were transported to Ne-
vada where they were “fenced” by petitioner. Petitioner also
“laundered” the proceeds of the sales of stolen stamps
through one of his businesses, the Consolidated Coin Com-
pany of Carson City, Nevada. The scheme was detected
when postal inspectors learned that postage stamps were
being sold at a San Francisco stamp show at 15% below
their face value (RT 81-85). The fencing operation was
traced back to petitioner.

The government’s case chiefly consisted of the testimony
of William Eggers, who participated in all of the burglar-
ies, and Joseph Escove, a San Francisco coin dealer who
fenced stolen stamps that he received from petitioner. Their
testimony was corroborated by a variety of documentary
and physical evidence, and by tape recordings of conversa-
tions among the burglars that Eggers secretly made after he
had agreed to cooperate with the government. The evidence
against petitioner was further corroborated by the testi-
mony of two other coin dealers, George Eggimann and Mar-
cus Reaves, who had learned of petitioner’s fencing opera-
tion. Petitioner knew about at least one of the burglaries in
advance (RT 439-440), and he told Escove that the stolen

RT” refers to the reporter's transcript of the trial. The citations
herein to the record are taken from the government's brief in the court
of appeals.

3

stamps were ordinarily received within 24 hours of the
burglaries (RT 658). Petitioner purchased a Ferrari with a
$35,000 check drawn on his Consolidated Coin Company
account (RT 612-613), which was used to deposit funds
obtained from fencing the stolen stamps (RT 640-646).
When petitioner was arrested, a search of the Ferrari unco-
vered $29,000 in stolen stamps (RT 89-95, 106-111,
612-613).

2. Petitioner contends that his conviction on the two
RICO counts should be set aside on the ground that the
RICO statute is unconstitutionally vague and overbroad.
At the outset, we note that petitioner failed to raise his claim
in the lower courts, and thus it is not properly before the
Court. See, e.g., United States v. Lovasco, 431 U.S. 783,
788 n.7 (1977).2 In any event, petitioner’s claim is without
merit.

Contrary to petitioner’s assertion, the RICO statute is
not unconstitutionally vague simply because the courts
have differed in their interpretations of its precise scope.
Indeed, every court of appeals to address the vagueness
claim has rejected it. See United States v. Aleman, 609
F. 2d 298, 305 (7th Cir. 1979), cert. denied, 445 U.S. 946
(1980); United States v. Swiderski, 593 F. 2d 1246, 1249
(D.C. Cir. 1978), cert. denied, 441 U.S. 933 (1979): United
States v. Hawes, 529 F. 2d 472, 479 (Sth Cir. 1976): United
States v. Campanale, 518 F. 2d 352, 363-364 (9th Cir.
1975), cert. denied, 423 U.S. 1050 (1976); United States v.
Parness, 503 F. 2d 430, 440-442 (2d Cir. 1974), cert. denied.
419 U.S. 1105 (1975). See also United States v. Huber, 603
F. 2d 387, 393 (2d Cir. 1979), cert. denied, 445 U.S. 927
(1980); United States v. Cappetto, 502 F. 2d 1351, 1357-
1358 (7th Cir. 1974), cert. denied, 420 U.S. 925 (1975).

>Petitioner’s co-defendant, Robert G. Moore, raised the claim below,
but the court of appeals rejected it (Pet. App. Sa).

' >

°*%

4

Especially since the predicate acts of racketeering were
themselves clearly illegal (see 18 U.S.C. (& Supp. III)
1961(1)), petitioner unquestionably had “fair warning * * *
as to what conduct is criminal * * *”( Huddleston v. United
States, 415 U.S. 814, 831 (1974)) and was not “forced to
speculate * * * whether his conduct [was] prohibited”
(Dunn v. United States, 442 U.S. 100, 112 (1979)).

Similarly, petitioner’s claim of overbreadth is insubstan-
tial. Although RICO is necessarily encompassing in order
to achieve its purpose of “eradicat[ing] organized crime in
the United States * * *” (Pub. L. No. 91-452, 84 Stat. 923,
18 U.S.C. 1961 note), it does not implicate any constitu-
tional right that could give rise to a colorable issue of
overbreadth.

Finally, even if application of RICO were uncertain in
some hypothetical situations, petitioner would have no
ground for complaint in this case. The principle is firmly
established that a person properly subject to the prohibi-
tions of a statute may-not escape punishment by contending
that the statute is invalid as applied to others. See, e.g.,
United States v. Powell, 423 U.S. 87 (1976); Parker v.
Levy, 417 U.S..733, 755-756, 759 (1974); Broadrick v. Okla-
homa, 413 U.S. 601 (1973).3

JAHhough it is not raised in the question presented, petitioner's
vagueness and overbreadth arguments advert (Pet. 7, 9-10) to the issue
whether RICO is applicable to a wholly illegitimate enterprise. That
issue is currently before the Court in United States v. Turkette, cert.
granted, No. 80-808 (Jan. 26, 1981). Because the issue is not raised in the
petition, and because in any event petitioner's legitimate business was
used in his fencing operation, we believe that there is no need to hold the
petition pending decision in Turkette. See United States v. Sutton, Nos.
78-5134 to 78-5139, 78-5141 to 78-5143 (6th Cir. Dec. 3, 1980) (en banc),
slip op. 25-27, rev’g 605 F. 2d 260 (6th Cir. 1979), petitions for cert.
pending, Elkins v. United States, No. 80-6058 (filed Jan. 19, 1981),
Hensley v. United States, No. 80-6137 (filed Feb. 2, 1981), Harris v.
United States, No. 80-6147 (filed Jan. 31, 1981), Holmes v. United
States, No. 80-6253 (filed Feb. 27, 1981), Adams v. United States, No.

5

It is therefore respectfully submitted that the petition for
a writ of certiorari should be denied.

WADE H. McCREE, JR.
Solicitor General

MARCH 1981

80-6254 (filed Feb. 27, 1981), Cravens v. United States, No. 80-6272
(filed Mar. 2, 1981); United States v. Zemek, 634 F. 2d 1159, 1167 (9th
Cir. 1980), cert. denied, Carbone v. United States, No. 80-900 (Feb. 23,
1981), and Caliguri v. United States, No. 80-6047 (Mar. 9, 1981), peti-
tions for cert. pending, Mazzuca v. United States, No. 80-1517 (filed
Mar. 6, 1981), Williams v. United States, No. 80-6307 (filed Mar. 7.
1981), Janovich v. United States, No. 80-6309 (filed Mar. 5, 1981);
United States v. Provenzano, 620 F. 2d 985, 993 (3d Cir. 1980), cert.
denied, No. 80-78 (Oct. 14, 1980). At all events, if the eventual decision
in Turkette is believed to be of assistance to petitioner, he may seek
appropriate relief at that time under 28 U.S.C. 2255 or Fed. R. Crim. P.
35.

DOJ-1981-03

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1166%3A2. Public record. Not legal advice.