Petition — Scotto v. United States
Supreme Court brief1981
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Office ‘Supreme Court, U.S,
8 0G a 1 6 7 9 | FILED
No. APR 6 {981
ALEXANDER L. STEVAS,
IN THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1980
ANTHONY M. Scotto, Petitioner
UNITED STATES OF AMERICA
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
EDWARD BENNETT WILLIAMS
HAROLD UNGAR
RICHARD M. COOPER
WILLIAMS & CONNOLLY
839 17th Street, N.W.
Washington, D.C. 20006
(202) 331-5000
Couisel for Petitioner
Anthony M. Scotto
PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.
QUESTIONS PRESENTED
1. In a prosecution under ‘‘RICO,’’* 18 U.S.C.
1962 (c) and (d), for conducting and conspiring to con-
duct the affairs of a union (the ‘‘enterprise’’) through a
‘‘pattern of racketeering activity,’’ predicated upon
multiple misdemeanors under 29 U.S.C. 186(b), each of
which consists of the receipt of money from an employer
paid without ‘‘intent to influence [the accused] in respect
to any of his actions, decisions or duties’’ as a union of-
ficial:
(a) whether, on the element of the nexus between
the predicate acts and the control of the affairs of the
enterprise, the trial court could lawfully reject a re-
quested jury instruction making conviction turn upon
proof of a functional, operational role played by the
predicate acts in the conduct of union affairs;
(b) whether, although the RICO statute contains no
mens rea requirement, the trial court could lawfully re-
ject a requested jury instruction making conviction turn
On intent to operate the union unlawfully, especially
since the predicate Taft-Hartley misdemeanors, unlike
any of the other predicate offenses set forth in the
statute (18 U.S.C. 1961(1)), are themselves not mens rea
crimes.
2. Whether, in addition to his conviction and
sentence: for a RICO violation, the defendant may be
convicted and cumulatively sentenced for the offenses
upon which the RICO violation is predicated.**
* An acronym for ‘‘Racketeer Influenced and Corrupt Organiza-
tions,’’ Title IX of the Organized Crime Control Act of 1970, Pub.
L. No. 91-452, 84 Stat. 922 (1970).
** Note pursuant to Rule 2](b): In the court below, Anthony
Anastasio was a co-appellant with petitioner Anthony M. Scotto.
iil
TABLE OF CONTENTS
PAGE
CPEMION BELOW... 0. ccc ccc ccecavevsssuccvsvees ]
JURISDICTION 1.0.0.0... 0c cece cece cece cence cece eeeeaees ]
STATUTES INVOLVED ........ 0... cc ccc eccecuceceececas 2
STATEMENT ..... 0... cc ccc ccc cece ence cevccccevsncees 2
THE RICO CONVICTIONS ......... 0.0. e cece cece eeues 4
THE DUAL CONVICTION ISSUE ..... 00.0000 cc cece cece ees 9
REASONS FOR GRANTING THE PETITION................. 10
CONCLUSION .. 0... cece ccc cccccccescvsesvceass 24
APPENDIX A... .. cece cece cece cen eeeneneus la
APPENDIX B..... 1... ccc ccc cece cece ee aeeees 19a
PPPENDIK Cooke ccc cd vcecccvecevervcuvews 2la
PRECEDING PAGE WAS BLANK
iV
TABLE OF AUTHORITIES
CASES: PAGE
Blockburger v. United States, 284 U.S. 299 (1932). 10, 21, 22
Dennis v. United States, 341 U.S. 494 (1951) ........... 19
Holdridge v. United States, 282 F.2d 302 (8th Cir.
RR ae Fy Ly eae CO ee Red RP re NT Ae |
Ingram v. United States, 360 U.S. 672 (1959)........... 4
Ladner v. United States, 358 U.S. 169 (1958)........... 24
Morissette v. United States, 342 U.S. 246 (1952) ........ 19
Pereira v. United States, 347 U.S. 1 (1954) ............. 4
Sansone v. United States, 380 U.S. 343 (1965) .......... 9
United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert.
vo Ae Eh eg] re oe 11
United States vy. Anderson, 626 F.2d 1358 (8th Cir.
1980), cert. denied, 49 U.S.L.W. 3617 (Feb. 23,
| rr re err EEE Ry a penne ee 14, 15
United States v. Boylan, 620 F.2d 359 (2d Cir.), cert.
denied, 101 S. Ct. 103 (1980) .............. 4, 8, 10, 18
United States vy. Dennis, 458 F. Supp. 197 (E.D. Mo.
pce e ey Ores eee eRe Ae es 13
United States v. DePalma, 461 F. Supp. 778 (S.D.N.Y.
Rr re ree ree rr rer rere rere ere 5-6
United States v. Dotterweich, 320 U.S. 277 (1943) ...... 20
United States v. Elliott, 571 F.2d 880 (Sth Cir.), cert.
Ged, SIA US. Fos CIP) 6 vv cece weaves 6, 11, 12, 14
United States v. Freed, 401 U.S. 601 (1971) ............ 20
United States v. Gibson, 486 F. Supp. 1230 (S.D. Ohio
SE cAMP CRA ORR ER RTE 16, 17
United States v. Guiliano, No. 80-1291 (2d Cir. March
Se NED cd Woe ohne Raabe hee ke slacenanes 3-4, 13
United States v. Heller, 579 F.2d 990 (6th Cir. 1978) .... 20
United States v. Huber, 603 F.2d 387 (1979), cert.
Ga, GS Ue Met CSD oon neha cdr akde baka ds 17-18
Vv
Table of Authorities Continued
CASES: PAGE
United States v. Mandel, 415 F. Supp. 997 (D. Md.
| RGR erate eer ees rr ay res ee a PERE 23
United States v. Moeller, 402 F. Supp. 49 (D. Conn.
a SER BS rr errr go ware hea hy yaar 11
United States v. Nerone, 563 F.2d 836 (1977), cert.
See, GES Ui Sek Ce bv cb vc cokes ohckee ee 16, 17
United States v. Ricciardi, 357 F.2d 91 (2d Cir.), cert.
ee, ee Ses EE oe Go bala s be pee kakees 7,8
United States v. Rone, 598 F.2d 564 (9th Cir. 1979),
cert. denied, 445 U.S. 946 (1980) ............ 10, 11, 22
United States v. Rosenthal, 454 F.2d 1252 (2d Cir.), cert.
Gam, G6 U.S. Fae CGT 6 osc dc eek cage veas cites 9-10
United States v. Ryan, 350 U.S. 299 (1956) ............ 8
United States v. Ryan, 232 F.2d 481 (2d Cir. 1956)...... 7
United States v. Stofsky, 409 F. Supp. 609 (S.D.N.Y.
1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert.
Ss He Shi EMEP 66 os ec esi secede teeun 5
United States v. Turkette, 632 F.2d 896 (\st Cir. 1980),
cert. granted, 101 S. Ct. 938 (1981) .......... 3, 14, 35
United States v. Umans, 368 F.2d 725 (2d Cir. 1966),
cert. dismissed, 369 U.S. GO C1967) 2... cc cee eess 9
United States v. United States Gypsum Co., 438 U.S.
SE eet ee ee ae rie ener 19, 20, 21
United States v. Webster, No. 79-5204, (4th Cir. Jan. 15,
1981, pet. for reh. filed, Feb. 2, 1981)........ 15, 16, 17
United States v. Weisman, 624 F.2d 1118, cert. denied,
ee ee os I A eo ka A eas oo cs whee ways 5, 6
United States v. Winston, 558 F.2d 105 (2d Cir. 1977)... y
Whalen v. United States, 445 U.S. 684 (1980) ........ 10, 22
vi
Table of Authorities Continued
STATUTES AND RULES: PAGE
Organized Crime Control Act of 1970, Title IX, §904(a),
Pub. L. No. 91-452, 84 Stat. 922 (1970) ....... i, ae ae
Organized Crime Control Act, Title X, 18 U.S.C.
STENT IIE. cscs sts es ena tadeabuens 13-14, 14
Se Ui. SU OOER CUPPED 5 oS cad ccdnvedss ceewtcuees i, 2, 11
Se ra SU ee COED bocca caecsebaueugonens passim
es ee CEE 0 6 6k 00 06es0dacbeikeneaseeneeee 23
Ee ee eer nr ee 13
ee A Ee ED ABE s dco + cb cduds cg haan 1,2
ee a as PE CSU 0 6. sino ocn pc acdc eeetoes 1, 2
Be ln ER is ines a din asada ce ceeene eee 2
Be lends SE EOD coc nn sn ou atbun sau eoeeeeeree 3
BP USC. 06 Ge) CGE) «ww oc co cs cs ewts LLAA Sa
8, 9, 10, 18, 21
es Se OP CUPP oes 6 5 iS own bh an suuncyaeeee 17
ee ee |
es Ws Es Ws Os avon wd eke ennuvause bauble 12
Sea A es ST OES o's Kc bs ook oeuckowne Wea i
MISCELLANEOUS:
Atkinson, Racketeer Influenced And Corrupt Organiza-
tions, 18 U.S.C. §§1961-68: Broadest Of The
Federal Criminal Statutes, 69 J. of Crim. Law &
Cy BE 6 4c 0 su aucwdeeGeenaeee teu 10
I Blakely, Materials On RICO: Criminal Overview, Cor-
nell Institute On Organized Crime 25 (1980)........ 12
G. Robert Blakey & B. Gettings, RICO: Evening Up The
eg 11
115 Cong. Rec., 575-607, 819-56, 952-72, 35191-217,
35287-364, 36280-93, 36294-96 (Jan. 21-23, Oct. 6-7,
Oe re Cre ren ee 20
Vii
Table of Authorities Continued
MISCELLANEOUS: PAGE
H.R. Rep. No. 91-1549, 9ist Cong., Ist Sess. (1970) .... 20
T. Marro & E. Shannon, Are Prosecutors Wild Over
RICO?, Legal Times of Washington, Oct. 8, 1972,
Rey era tras yee pant ae 10
McLellan, The Organized Crime Act (S. 30) Or Its
Critics: Which Threatens Liberties?, 46 Notre Dame
en Oe r eos cease bak ean ees awn es 14
National Law Journel, March 30, 1981, p. 8 ........... 13
Fe TOPE FUE, BO Bd, TFG: Dik oc cccccstsacncseuss 20
S. Rep. No. 91-617, 91st Cong., Ist Sess., 158 (1969).. 20, 23
United States Attorneys’ Manual, §9-110.101 (Jan. 17,
uA Wists Es Kha he ek a one eT RNASE A OS + ey,
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
No.
ANTHONY M. Scotto, Petitioner
Vv.
UNITED STATES OF AMERICA
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
Petitioner, Anthony M. Scotto, prays that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Second Circuit, affirm-
ing his conviction in the United States District Court for
the Southern District of New York on charges of
violating 18 U.S.C. 1962(c) and (d), 29 U.S.C. 186(b),
and 26 U.S.C. 7201 and 7206(1).
OPINION BELOW
The opinion of the court of appeals (App. A, infra,
la-18a) is not yet officially reported.
JURISDICTION
The court of appeals filed its opinion and entered
judgment against petitioner on September 2, 1980. A
¥
a)
timely petition for rehearing and suggestion for rehearing
en banc was denied, without opinion, on March 6, 1981.
A copy of that order of denial is printed at App. B, in-
fra, 19a. By its order of March 27, 1981, the court of
appeals stayed issuance of its mandate, under Fed. R.
App. P. 41, pending application to this Court for a writ
of certiorari. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATUTES INVOLVED
The relevant provisions of RICO, 18 U.S.C. 1961 ef
seq. and of the Taft-Hartley Act, 29 U.S.C. 186, are set
forth in App. C, infra, 2la-27a.
STATEMENT
Petitioner was convicted of twenty-seven Taft-
Hartley misdemeanors, 29 U.S.C. 186(b), for receiving
money from employers while he was an officer of the In-
ternational Longshoremen’s Association and one of its
locals; a substantive RICO violation, 18 U.S.C. 1962(c),
for conducting the affairs of the union through those’
Taft-Hartley violations; a RICO conspiracy, 18 U.S.C.
1962(d); two violations of 26 U.S.C. 7201 for evading
income tax on the money received from employers; and
two violations of 26 U.S.C. 7206(1) for falsifying his tax
returns as to those payments.’
' RICO requires only two predicate offenses. The prosecution, if
it has evidence of multiple offenses, may elect to predicate the
RICO charge on two of them and charge all the others separately.
Here, since no such election was made, the trial court instructed the
jury that the RICO charge was based on ‘‘any two or more of the
acts alleged in Counts 2 through 37’’ and an equivalent instruction
was given on the RICO conspiracy count. Appendix below
(hereinafter ‘‘App.’’), 76, 85.
>On nine other Taft-Hartley counts and two other tax counts,
the jury failed to reach a verdict.
Petitioner was sentenced on the two RICO counts to
five years of imprisonment, five years of supervised pro-
bation, and a fine of $25,000.00. On the twenty-seven
Taft-Hartley counts, he was sentenced to five cumulative
one-year terms, concurrent with the RICO term, and ad-
ditional fines of $50,000.00. On the tax counts, as well,
he received a concurrent five-year term, but no fine.
App. 126-27.
In the appeal below, petitioner argued: (1) that the
RICO convictions were erroneous; (2) that it was error
to convict him both of RICO and of the predicate
misdemeanors upon which the RICO violations were
based; and (3) that both the misdemeanor convictions
and the tax convictions flowing from them should be
reversed for improper jury instructions.
In this petition, considering the nature of certiorari
and having regard for the function of this Court, peti-
tioner raises Only those issues relating to the RICO con-
victions and their effect upon the predicate misdemeanor
convictions. Petitioner will pray, however, that the
Court, if it grants the petition and ultimately sustains
petitioner’s position, follow the course recently adopted
by the court below’ and vacate and remand for a new
trial even those convictions not here specifically
attacked.
‘In United States v. Guiliano, No. 80-1291 (2d Cir. March 10,
1981), the court, having reversed convictions on a RICO count and
on one of the two predicate counts, but not on the remaining
predicate count, nevertheless, pursuant to the judicial authority con-
ferred by 28 U.S.C. 2106, remanded for a new trial on the remain-
ing count. In explanation of its action, the court said: ‘‘One of the
hazards of a RICO count is that when the Government is unable to
sustain a conviction under this statute, it will have to face the claim
that the prejudicial effect of tarring a defendant with the label of
‘racketeer’ tainted the conviction on an otherwise valid count.’’ S/ip
op. at 1768-69. While this principle is moi one of universal
4
THE RICO CONVICTIONS
RICO, 18 U.S.C. 1962(c), prohibits conducting the
affairs of an enterprise through a pattern of racketeering
activity — i.e., through two or more violations of a list
of specified criminal statutes. Those two or more viola-
tions are the predicate for the RICO violation. Peti-
tioner’s defense to the RICO counts‘ consisted not only
of a denial that he had committed the predicate Taft-
Hartley offenses, but of the further denial that the
employer payments, even if they were Taft-Hartley viola-
tions, played or were intended to play any role what-
soever in his conduct of the affairs of the union, the
designated ‘‘enterprise’’ in the RICO charges. He con-
tended, therefore, that the payments could not constitute
a RICO predicate.
Highly relevant to this defense was the government’s
representation, in a letter to the trial judge at the start of
the trial, that the employer payments in this case, unlike
those in United States v. Boylan, No. 79 Cr. 225
(E.D.N.Y.),° were not charged to have been made ‘‘with
applicability, id. at 1769, we think it uniquely applicable in this case
where at least some of the evidence admitted against petitioner was
admissible solely because of the inclusion of the RICO conspiracy
count.
‘ This section of the petition, dealing, for the most part, with the
substantive RICO conviction, also applies to the RICO conspiracy
conviction. If the conduct of which petitioner has been found guilty
has not properly been found to have played a role in his conduct of
union affairs, or to have been intended to play such a role, there is
not only no substantive RICO offense, but also no conspiracy to
commit such an offense. Pereira v. United States, 347 U.S. 1, 11-12
(1954); Ingram v. United States, 360 U.S. 672, 678 (1959).
* Conviction affirmed, United States v. Boylan, 620 F.2d 359 (2d
Cir.), cert. denied, 101 S. Ct. 103 (1980). Boylan involved
§186(a)(4) of Taft-Hartley, which includes the element of ‘‘intent to
influence.’’ The instant case involves §186(a)(1) and (2), which in-
clude no such element.
intent to influence [the recipient] in respect to any of his
actions’ as a union officer. App. 49-50. Since the gist of
the RICO charge is that ‘‘the predicate acts constituting
a ‘pattern of racketeering activity’ must all be done in
the conduct of the affairs of an ‘enterprise’,’’ United
States v. Weisman, 624 F.2d 1118, 1122 (2d Cir.), cert.
denied, 101 S. Ct. 209 (1980), it was crucial to peti-
tioner’s defense that the jury be adequately instructed on
the nature and extent of the required pattern-enterprise
nexus.
Petitioner requested an instruction that: (1) obj/ec-
tively, there must be an operational, functional nexus
between the predicate acts and his participation in the
conduct of the affairs of the union (App. 46); and (2)
subjectively, he must have had a ‘“‘specific intent to do
something the law forbids ... with bad purpose either
to disobey or disregard the law.’’ App. 45. In colloquy
with the trial court on the instructions, petitioner’s
counsel made unmistakably clear the defense position
that, to be convicted under RICO, ‘‘you have to intend
to conduct the enterprise directly or indirectly in an il-
legal manner.’’ Tr. 6895. Equally unmistakable was the
court’s rejection of the defense position:
‘| don’t agree with you. If that’s what you are sug-
gesting I don’t think you have to show that the
enterprise was being conducted in an illegal man-
ner.’’ /d.°
* In taking that position the court accepted the prosecution’s con-
tention that United States v. Stofsky, 409 F. Supp. 609 (S.D.N.Y.
1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S.
819 (1976), had made ‘‘pattern’’ the gist of RICO, virtually
eliminating the significance of nexus with the enterprise. Tr. 6892,
6900-01.
The Stofsky dicta, 409 F. Supp. at 613, 617, relied on by the
government, had been rejected by another judge of the same court
in United States v. DePaima, 461 F. Supp. 778, 782-84 (S.D.N.Y.
6
Instead, the trial court charged the jury, in the
statutory language, that:
The
** . . the Government must prove . . . that through
the two or more of these connected racketeering of-
fenses the defendant Scotto conducted or par-
ticipated directly or indirectly in the conduct of the
affairs of that enterprise.’’ App. 76-77.
court then added:
**.. you must find beyond a reasonable doubt that
the defendant committed the two or more of the of-
fenses alleged in Counts 2 through 37 while and as
part of conducting or participating either directly or
indirectly in the conduct of the affairs of the
enterprise.
‘*In this regard it is not necessary for the Govern-
ment to prove that the affairs of the enterprise were
advanced by the defendant’s activities, although you
may find this to be true, or that the particular enter-
prise was corrupt or that the enterprise authorized
the defendant to commit the particular acts of
racketeering activity alleged.
‘It is only necessary to find that the acts were
commited by the defendant or caused to be commit-
ted by him in the conduct of, or his participation in,
the affairs of the enterprise.’’ App. 78-79.
As to the subjective element of the RICO offense,
the court refused to instruct the jury that conviction
turned on specific intent to conduct the affairs of the
union in an illegal manner, instructing instead:
‘Fifth, that the defendant acted wilfully and
knowingly. You must be satisfied beyond a
1978), and by the Fifth Circuit in United States v. Elliott, 571 F.2d
880,
899 n.23, cert. denied, 439 U.S. 953 (1978); and subsequently
the Second Circuit itself rejected them in United States v. Weisman,
supra, 624 F.2d at 1121-23.
-
reasonable doubt that the defendant knew what he
was doing and that he did it deliberately and volun-
tarily and not because of a mistake, accident,
negligence or some other innocent reason.
‘*An act is wilful for the purposes of this statute
if it is done knowingly and deliberately with a
criminal motive or purpose.
‘In determining whether the defendant has acted
knowingly and willfuliy it is not necessary that the
defendant knew he was violating any particular act
or law. It is sufficieut if you are convinced beyond a
reasonable doubt that the defendant was aware of
the general unlawful nature of his act as alleged in
the indictment.’’ App 79.
The court below, while declaring that ‘‘predicate
acts .. . unrelated to the enterprise or one’s position in
it would be insufficient,’’ held that the necessary rela-
tionship exists not only when the predicate offenses are
used in conducting the affairs of the enterprise (as peti-
tioner had argued), but also ‘‘when ... one is enabled
to commit the predicate offenses solely by virtue of his
position in the enterprise or involvement in or control
over the affairs of the enterprise... .’’ App. A, infra,
10a.
Since, by definition, a §186(b) violation can be
committed only by a union official, this new explication
of the nexus requirement fits petitioner like a glove, but
it also eliminates the crucial nexus element from RICO
even while professing to preserve it. A union official
violates §186(b) if he receives from an employer a gift,
“however trifling and innocuous,’’ United States v.
Ryan, 232 F.2d 481, 483 (2d Cir. 1956), and even if
made out of personal friendship and not because he is a
union official, United States v. Ricciardi, 357 F.2d 91,
99 (2d Cir.), cert. denied, 384 U.S. 942 (1966). Here,
&
8
petitioner was found to have committed multiple §186(b)
violations by receiving payments not alleged to have been
intended to influence his conduct of union affairs, but,
since he was ‘‘enabled to commit the predicate offenses
solely by virtue of his position in the enterprise,’’ the
court below makes him, ipso facto, a violator of RICO
and denies his entitlement to an instruction under which
the jury would determine whether his misdemeanors did,
in fact, play any operational role in his conduct of union
affairs. The court below has thus held that petitioner’s
status as a union Official, which is sufficient to satisfy
§186, a misdemeanor statute, also suffices to satisfy the
“conduct of the affairs’? eiement of RICO, a major
felony statute.’
The court below sustained the intent instruction that
was given, and the refusal to give a mens rea instruction,
on the purported authority of its earlier opinion in
United States v. Boylan, 620 F.2d at 361-62. App. A, in-
fra, 12a. The court ignored the fact that Boylan involved
predicate offenses with mens rea (offenses in the nature
of bribery), and did not present the mens rea issue here
presented.’
’ The court below also approved the language of the instructions
as sufficiently conveying to the jury the defense theory that RICO
guilt depended on the defendant having conducted the union’s af-
fairs by illegal acts. In short, the court read the instructions as fair-
ly conveying to the jury a message that the trial judge had held nor
to be required and had specifically refused to convey.
* The §186 offense here involved is a non-mens rea misdemeanor.
United States v. Ryan, 350 U.S. 299, 305 (1956); United States v.
Ricciardi, 357 F.2d 91 (2d Cir.), cert. denied, 384 U.S. 942 (1966).
Although the word ‘‘willfully’’ appears in the penalty provision,
§186(d), the offense is malum prohibitum, and requires neither an
evil motive nor knowledge that acceptance of the prohibited pay-
ment is unlawful. Ricciardi, supra, 357 F.2d at 99-100.
9
Although §186 is included as a predicate offense of
RICO, the legislative history contains no discussion as to
whether Congress intended that the Draconian penalties
of kICO (imprisonment up to twenty years, a fine up to
$25,000.00, and sweeping forfeitures) be imposed on a
person who merely commits two §186 violations of the
non-mens rea, malum prohibitum type. In his argument
below, petitioner contended that Congress did not intend
such a result, that its purposes could be achieved without
it, and that RICO should therefore be interpreted, in
such a case, aS incorporating an intent requirement
similar to that articulated in United States v. Winston,
558 F.2d 105, 109 (2d Cir. 1977).
The decision below on the mens rea issue is stark:
even for a twenty-year felony, and in the absence of any
expression of congressional intent to dispense with mens
rea, nO mens rea is required; and anything in the trial
court’s instructions that hinted at a mens rea require-
ment was unduly favorable to the defendant. App. A,
infra, 14a.
THE DUAL CONVICTION ISSUE
Although the imprisonment imposed for the Taft-
Hartley violations was concurrent with the five-year
RICO term, petitioner was subjected to additional fines
of $50,000.00 for those Taft-Hartley violations. Peti-
tioner argued below that the RICO conviction covered
every element of the predicate Taft-Hartley offenses, so
that the latter were lesser-included-offenses within the
former. Sansone v. United States, 380 U.S. 343, 349-50
(1965). Petitioner requested, therefore, that the Taft-
Hartley convictions be vacated. United States v. Umans,
368 F.2d 725, 730-31 (2d Cir. 1966), cert. dismissed, 389
U.S. 80 (1967); United States v. Rosenthal, 454 F.2d
1252, 1255-56 & n.2 (2d Cir.), cert. denied, 406 U.S. 931
10)
(1972). The court below rejected this argument on the
authority of its opinion in United States v. Boylan,
supra, which, in turn, cited this Court’s opinion in
Whalen v. United States, 445 U.S. 684 (1980). App. A,
infra, 14a.°
REASONS FOR GRANTING THE PETITION
1. RICO has been characterized as ‘‘the most sweep-
ing criminal statute ever passed by Congress,’’ with
“great potential for abuse against individual defen-
dants.”” Atkinson, Racketeer Influenced And Corrupt
Organizations, 18 U.S.C. §8§1961-68: Broadest Of The
Federal Criminal Statutes, 69 J. of Crim. Law &
Criminology 1, 6 (1978).'°
* In Boylan, the court held that RICO and §186 violations are
“‘separate crimes, separately punishable,’’ because they ‘‘do not
proscribe the same act or transaction, and they implement different
congressional purposes.’’ 620 F.2d at 361. For the same reason, the
court held that there was no violation of the double jeopardy test
set Out in Blockburger v. United States, 284 U.S. 299, 304 (1932):
‘“‘whether each provision requires proof of a fact which the other
does not.’’ Purporting to follow what this Court had written in
Whalen, the court below found it ‘‘clear that in the case before [it],
Congress intended to create separate crimes, separately punishable.”’
Boylan, 620 F.2d at 361. As to what made that intent clear, the
court only referred to the dictum from United States v. Rone, 598
F.2d 564, 571 (9th Cir. 1979), cert. denied, 445, U.S. 946 (1980),
that ‘‘[t}here is nothing in the RICO statutory scheme which would
Suggest that Congress intended to preclude separate convictions or
consecutive sentences for a RICO offense and the underlying or
predicate crimes... .”’
* Allegations have been made, for example, that prosecutors are
attempting to exact guilty pleas by threatening to prosecute under
RICO and that judges in cases brought under RICO commonly
speak, in their jury instructions, about the purpose of Congress to
stop racketeering. T. Marro & E. Shannon, Are Prosecutors Wild
Over Rico?, Legal Times of Washington, Oct. 8, 1979, p. 32.
1]
The statute deals generally with the interplay of
‘‘racketeering activity’’ and ‘‘enterprise.’’ The provision
here involved, §1962(c), covers participating ‘‘in the con-
duct of [the] enterprise’s affairs through a pattern of
racketeering activity.’’ ‘‘Racketeering activity’’ includes
eight separate types of state crime and twenty-four
federal crimes. 18 U.S.C. 1961(1). In a majority of the
circuits, the racketeering activity itself may constitute the
‘“‘enterprise.’’'' What ‘‘is quite simply ... arson
punishable by state law’’ can even now, at the whim of a
federal prosecutor, be transmuted into a twenty-year,
$25,000-fine, forfeiture-laden violation of RICO. See
United States v. Moeller, 402 F. Supp. 49, 60 (D. Conn.
1975),'?
Two of the reputed co-authors of RICO and pro-
selytizers for its greater use tout the statute as having
replaced conspiracy as what Judge Learned Hand called
“the darling of the prosecutor’s nursery.’’'? As one of
them points out:
‘There are few offenses involving white collar of-
fenders, that is crimes of fraud and deceit, that are
not in fact mail fraud [one of the predicate offenses
for RICO]. There are few mail frauds that aren’t in
‘' See, e.g., United States vy. Altese, 542 F.2d 104 (2d Cir. 1976),
cert. denied, 429 U.S. 1039 (1977); but see, United States v.
Turkette, 632 F.2d 896 (Ist Cir. 1980), cert. granted, 101 S. Ct. 938
(1981).
‘* Moreover, if more than one culprit is involved, the prosecutor,
if he wishes, may add to the RICO charge a charge of RICO con-
spiracy, see, e.g., United States v. Elliott, supra note 6, and the trial
judge may impose consecutive maximum sentences. 571 F.2d at
895-96; see also United States v. Rone, supra, 598 F.2d at 570-71.
'’ G. Robert Blakey & B. Gettings, RICO: Evening Up The Odds,
Trial, (Oct. 1980) 58.
12
—
fact, if it is [sic] a sophisticated scheme at all, also a
RICO violation.’’'*
He also says, perhaps having in mind the instant case:
**By reconceptualizing, if you will, the way in which
the Taft-Hartley violation goes down, and that’s a
payment from an employer to a [union] represen-
tative, you can alter it from a simple misdemeanor
under the Taft-Hartley Act to a very serious felony
under RICO.’’'®
So broad, moreover, is RICO’s sweep that only this
Court can prevent it from erasing legal principles
painstakingly distilled out of experience over the genera-
tions for the proper functioning of federal criminal
justice. In one circuit, for example, RICO has already
been proclaimed as a ‘‘legislative innovation in the realm
of individual liability for group crime,’’ the effect of
which ‘‘is to free the government from the strictures of
the multiple conspiracy doctrine and to allow the joint
trial of many persons accused of diversified crimes.’’
United States v. Elliott, supra, 571 F.2d at 900, 903.'°
Nor can the courts, if concerned over excesses of
RICO, safely rely on prosecutors’ discretion. Prosecutors
are not always judicious; sometimes, in a desire to
achieve a result they deem just, they close their eyes to
the proper limitations of the law.'’
'* | Blakey, Materials on RICO: Criminal Overview, Cornell In-
stitute On Organized Crime 25 (1980).
” fis
'° The Elliott view would also erase the joinder principles em-
bodied in Fed. R. Crim. P. 8.
' Nor does a system of pre-indictment scrutiny by the Depart-
ment of Justice provide any real security against improper prosecu-
tion. For example, notwithstanding a provision for screening by the
Organized Crime and Racketeering Section of the Department,
United States Attorneys’ Manual §9-110.101 (Jan. 17, 1977), it
became necessary for a trial court, on its own motion, summarily to
dismiss a RICO prosecution of a common loan-shark because the
prosecutor had named as the ‘‘enterprise’’ the General Motors
13
An additional cause for concern is that not only
prosecutors hold the reins of RICO. Under 18 U.S.C.
§1964(c), a civil suit may be brought by ‘‘[a]ny person
injured in his business or property by reason of a viola-
tion of section 1962.’’ Such private litigation, made at-
tractive by a provision for treble damages, costs and at-
torneys’ fees, must be expected to become increasingly
fashionable. '*
The decision below promises greatly to extend the
already overbroad reach of RICO by reading the ‘‘con-
duct of the affairs’’ element out of the statute, and by
dispensing with any requirement of mens rea for this
twenty-year felony.
2. The philosophic justification of RICO’s severe
sanctions, reflected on virtually every page of the
legislative history, is that the types of crimes committed
by the members of the undefined group called **organiz-
ed crime,’’ as costly and dangerous to society as those
crimes may ordinarily be, grow enormously more costly
and dangerous when the perpetrators emerge from their
underworld habitat and use their resources, their power
and their methods to acquire and operate the economic
institutions by which society lives.
Any mere penalty-enhancement purpose Congress
may have had for the punishment of repeated miscon-
duct was amply served by Title X of the Organized
Assembly Division where the accused was employed. United States
v. Dennis, 458 F. Supp. 197 (E.D. Mo. 1978). See also, United
States v. Guiliano, supra note 3 at 1766, where the court, in revers-
ing a RICO conviction, took ‘‘occasion to express some concern
about the Government’s attempt to apply the RICO statute to the
activities of [the accused].’’ One may well inquire, with Juvenal,
‘Quis custodiet ipsos custodes?”’
* See the report headlined ‘‘Novel RICO Civil Suit Seeks $500M
Damages,’’ National Law Journal, March 30, 1981, p. 8. The
RICO proselytizers have been actively urging such litigation. Supra
note 13 at 60, note 14 at 25, and note 10 at 30.
14
Crime Control Act, 18 U.S.C. 3575-78.'° But, as sum-
marized by Senator John L. McLellan, the manager of
RICO in the Senate, ‘‘[uJnless an individual ... uses
that pattern fof racketeering activity] to obtain or
Operate an interest in an interstate business, he is not
made subject to proceedings under Title IX.’’?°
What the statute addresses is the aggregation of
criminal power and established institutions. The decision
below, by effectively obliterating the essential ‘‘conduct
of the affairs of the enterprise’’ element, distorts and
misapplies RICO.
3. In the RICO case already accepted for review,
United States v. Turkette, No. 80-808, cert. granted, 101
S. Ct. 938 (1981), the issue the Solicitor General presents
is whether RICO applies to ‘‘illegitimate enterprises.’’
Such application of RICO has been criticized as essen-
tially eliminating the ‘‘enterprise’’ element from the
statute.*' The Solicitor General, however, maintains in
his brief in Turkette, at pp. 23-26, that the ‘‘enterprise’’
element of the statute is fully preserved even when RICO
is applied to criminal enterprises. It would seem then
that, whichever side prevails in Turkette, the Court is
likely to leave intact the proposition that: ‘‘The
gravamen of the offense . . . is the conduct of an enter-
prise’s affairs through a pattern of racketeering activi-
ty.’ United States v. Elliot, supra, 571 F.2d at 899 n.23.
'? United States v. Anderson, 626 F.2d 1358, 1368 n.17 (8th Cir.
1980), cert. denied, 49 U.S.L.W. 3617 (Feb. 23, 1981).
7° McLellan, The Organized Crime Act (S. 30) Or Its Critics:
Which Threatens Civil Liberties?, 46 Notre Dame Lawyer 55, 143
(1970).
*! See authorities cited in United States vy. Anderson, supra, 626
F.2d at 1364.
15
In applications of RICO to criminal enterprises,
should the Court permit such use of the statute, the
pattern-enterprise nexus will pose no great problem, for
such cases generally present a sufficient identity between
the pattern and the enterprise to satisfy the statutory re-
quirement that the former be employed in conducting
the affairs of the latter. When, however, RICO is ap-
plied, as in the instant case, to a legitimate enterprise,
there will remain, unresolved by what this Court is likely
to write in Turkette, complex, vexing and rapidly pro-
liferating’’ questions concerning the nature and degree of
the required relation of the ‘‘pattern of racketeering ac-
tivity’’ to the ‘‘conduct of the affairs of the enterprise.’’
Among those questions are the following, which the case
at bar presents:
(a) The court below has held that guilt under RICO
does not require advancement of the enterprise’s affairs
by the racketeering activity. App. A, infra, lla. The
court below is, in this respect, in clear conflict with the
Fourth Circuit in United States v. Webster, No. 79-5204
(Jan. 15, 1981, pet. for reh. filed Feb. 2, 1981), slip op.
at 29:
‘We, therefore, hold that the prosecution was re-
quired to prove that the ‘enterprise’... . had its af-
fairs advanced or benefitted in some fashion, direct
“RICO initially was not very popular among prosecutors. The
reluctance to use it no doubt stemmed in part from its complexity
and the fear of unleashing a Pandora’s box of Statutory interpreta-
tion problems. Beginning in 1975, the United States Justice Depart-
ment Task Force specializing in RICO toured the country, lecturing
to United States Attorneys and their assistants on the use of RICO.
[Citation omitted.] After this promotional campaign, RICO has
grown in popularity.’’ United States v. Anderson, supra, 626 F.2d
at 1364 n.8.
16
or indirect, by the pattern of racketeering activi-
ae
(b) Aside from whether the impingement of the one
element on the other must be in the nature of ‘‘advance-
ment’’ or ‘‘benefit,’’ United States v. Webster held at
least that the direction of that impingement must be
from the ‘‘pattern’’ element toward the ‘‘enterprise’’ ele-
ment, and not the reverse. The court said (slip op. at
26):
‘(T]he statute should be applied in such a way as to
punish where the racketeering activity advances the
nonracketeering business but not where the only
relation between the two consists of benefits which
the racketeering activity derives from the
nonracketeering enterprise. ”’
Similarly, the Seventh Circuit had earlier held in United
States v. Nerone, 563 F.2d 836, 851 (1977), cert. denied,
435 U.S. 951 (1978), that a RICO prosecution cannot be
founded on evidence that the racketeering activity was
‘“*facilitated through the cover of a legitimate enter-
prise.”’ See also United States v. Gibson, 486 F. Supp.
1230, 1244 (S.D. Ohio 1980), where the court acquitted
on a RICO count because:
‘“‘[T]he prosecution has perverted the proof analysis.
[It] has attempted to show only that Gibson engaged
** A subsidiary question is presented by a conflict of the opinion
below, not with the opinion in Webster, but rather with a position
there taken by the government. In the instant case, the court below
expressed unconcern with whether the role played by the predicate
acts in the enterprise’s affairs was ‘‘major’’ or ‘‘minor’’ or, indeed,
‘“‘any at all.’’ App. A, infra, 10a. By contrast, the government con-
ceded in Webster that there must be a ‘‘substantial nexus,’’ arguing,
however, ‘‘that it is sufficient under §1962(c) to show that the enter-
prise advances the interests of the racketeering activity.’’ S/ip op. at
24.
17
in a pattern of racketeering activity through the in-
strumentality of his union office, and not vice ver-
">
The court below piaced itself in conflict with the
Fourth Circuit in Webster and the Seventh in Nerone
(and, incidentally, with the district court Gibson opinion)
when it found the pattern-enterprise nexus satisfied here
by the fact that petitioner was ‘‘enabled to commit the
predicate offenses solely by virtue of his position in the
enterprise... .’’?* App. A, infra, 10a.
(c) The court below perpetuates and further con-
founds the prevalent confusion over the RICO pattern-
enterprise nexus by denying the authority of the opir..on
of another circuit (Nerone, supra) and even of the Se-
cond Circuit itself in United States v. Huber, 603 F.2d
** The impropriety that defeated the RICO prosecution in all
three of these cases (Webster, Nerone, and Gibson) — the
misconception of the direction of movement of the pattern-
enterprise nexus — was not a mere fortuity. It was rather the ex-
pression in each case of a view of 18 U.S.C. 1962(c) formally
adopted by the Department of Justice in the United States Al-
torneys’ Manual §9-110.101 (Jan. 17, 1977): ‘*This section is design-
ed to reach those persons who by employment or association in an
enterprise use that enterprise to engage in unlawful activities.’’ Em-
phasis added.
** The predicate acts in Gibson were embezzlements from the
union in violation of 29 U.S.C. 501(c), an element of which is that
the defendant occupy a union position. Contrary to the decision in
the instant case, the Gibson court said: “‘Admittedly, the racketeer-
ing activity at issue here is connected to the Operation of the union
in the sense that Gibson would not have been able to accomplish the
embezzlement of union funds but for his position with the union.
We must presume, however, that had Congress desired to use RICO
to prohibit all racketeering activity in connection with or through
the instrumentality of a legitimate enterprise, it would have done so
expressly.’’ 486 F. Supp. at 1244.
18
387, 395 (1979), cert. denied, 445 U.S. 927 (1980), on
the ground that they ‘‘involved challenge to ... the in-
dictment or to ... . the evidence; they did not discuss the
language to be used in charging the jury... .’’ App. A,
infra, 10a. It would seem essential to the federal judicial
system that each circuit’s opinions on what must be
alleged and what must be proven in a RICO prosecution
should receive respectful consideration by each other cir-
cuit on the issue of what must be told the jury as to
what has been alleged and proven. We submit that, if
the circuit courts of appeal ignore each other, this
Court’s intervention becomes imperative.
4. On the subjective aspect of the RICO offense, the
holding below dispenses with a mens rea instruction,
because, since no mens rea element is set forth in RICO,
no mental element is required beyond that which is in-
volved in the predicate offenses.** Petitioner’s argument,
however, was not that RICO specified a mens rea re-
quirement but, rather, that since all of the specified
predicate offenses, except the one non-intent §186 viola-
tion, involve a high degree of mens rea, Congress should
not be held to have dispensed with mens rea in that one
** Boylan, relied on by the court below, differed from this case in
that, in Boylan, the payments were made in violation of §186(a)(4)
with intent to influence the conduct of union affairs, whereas here
they were not claimed to have been made with any such intent. See
supra note 5 and text thereat. The court below said, however, in
Boylan, that the mens rea implicit in a §186(a) payment made with
intent to influence does not carry over to the correlative §186(b)
charge of receiving the payment, so that the ‘‘intent’’ instruction
given in Boylan was ‘‘more favorable to defendant than required.’’
620 F.2d at 362. While the propriety of a construction of §186 that
produces such an anomaly is open to question, that question need
not be reached here. In the instant case, it is agreed that neither the
§186(a) payments nor the §186(b) receipts were claimed to have in-
volved mens rea.
19
instance alone, and the courts should interpret RICO as
incorporating an intent requirement. That argument, we
submit, merits this Court’s consideration,
In United States v. United States Gypsum Co., 438
U.S. 422 (1978), the Court referred to its ‘generally in-
hospitable attitude to non-mens rea offenses’’ (id. at
438) and recognized something akin to a presumption in
favor of requiring mens rea in circumstances like those
here. The Court quoted with approval from Dennis v.
United States, 341 U.S. 494, 500 (1951), that ‘‘[t}he ex-
istence of a mens rea is the rule of, rather than the ex-
ception to, the principles of Anglo-American criminal
jurisprudence.’’ 438 U.S. at 436. The Court also quoted
(id.) from Morissette v. United States, 342 U.S. 246,
250-51 (1952), to show that it was not speaking only of
common law crimes.
Mr. Justice (then Judge) Blackmun, in Holdridge v.
United States, 282 F.2d 302, 310 (8th Cir. 1960), thus
summarized the factors that must be satisfied to over-
come the presumption of a mens rea requirement:
‘“‘[W]here a federal criminal statute omits mention
of intent and where it seems to involve what is
basically a matter of policy, where the standard im-
posed is, under the circumstances, reasonable and
adherence thereto properly expected of a person,
where the penalty is relatively small, where convic-
tion does not gravely besmirch, where the statutory
crime is not one taken over from the common law,
and where congressional purpose is supporting, the
Statute can be construed as one not requiring
criminal intent. The elimination of this element is
then not violative of the due process clause.”’
In the case of RICO, virtually all of the conditions
for attributing to Congress an intent to dispense with
mens rea are absent. RICO does not involve ‘‘what is
20
basically a matter of policy’’; it is not a public health
and welfare statute like those involved in United States
v. Dotterweich, 320 U.S. 277 (1943), and United States
v. Freed, 401 U.S. 601 (1971). The statutory penalty
under RICO, plainly, is far from small: imprisonment
up to twenty years and a fine up to $25,000, plus
substantial forfeitures.’” And conviction does gravely
besmirch: it brands a man a ‘“‘racketeer.’’**
Most significantly, neither RICO nor its legislative
history reflects any intent to depart from the mainstream
of American criminal law by enacting a major felony
statute that dispenses with mens rea. RICO was enacted
against the background of criminal jurisprudence
discussed in Gypsum. Neither the committee reports?’
nor the floor debates*® evince an intent to depart from
that jurisprudence.
*’ Congress was well aware of the gravity of a RICO offense and
the seriousness of the penalties that could be imposed. See 115
Cong. Rec. 35193 (Oct. 6, 1970) (remarks of Rep. Poff); S. Rep.
No. 91-617, 91st Cong., Ist Sess. 158 (1969). In United States v.
Heller, 579 F.2d 990, 994-95 (6th cir. 1978), the court commented:
“A defendant convicted of violating 18 U.S.C. §875(a) can be
sentenced to twenty years imprisonment and fined $5,000. The con-
cept of malum prohibitum crime simply does not square with that
kind of an offense and with such severe punishment... . If we
would have to imply an intent element to this offense, we would,
because Congress is attempting to define a serious crime.”’
** When The New York Times, January 23, 1980, reported peti-
tioner’s sentencing, its page | headline read:‘‘Scotto Gets 5-Year
Term and Fine for Racketeering.’’ App. 165.
* S. Rep. No. 91-617, 91st Cong., Ist Sess, (1969); H.R. Rep.
No. 91-1549, 91st Cong., Ist Sess. (1970).
115 Cong. Rec. 575-607, 819-56, 952-72, 35191-217, 35287-364,
36280-93, 36294-96 (Jan. 21-23, Oct. 6-7, 12, 1970).
21
The most likely explanation of why Congress did
not address the issue of mens rea in drafting RICO is
that the other predicate offenses carry with them re-
quirements for highly culpable mens rea. In this respect,
§186 is an anomaly, possibly overlooked in the delibera-
tions on the bill.*' Requiring proof of mens rea when
RICO is predicated on violations of §186 would not im-
pede any congressional purpose to be served by RICO,
since, for all the other predicate offenses, some proof of
mens rea is required.
Plainly, the conditions specified in Holdridge and
the ‘‘far more’’ required by Gypsum, 438 U.S. at 438,
before dispensing with mens rea are not present here.
5. The defects in the holding below that petitioner
may properly be convicted and sentenced on both RICO
and the predicate Taft-Hartley violations are readily
apparent.
First, §186 may be a lesser-included-offense within
RICO even though the transaction RICO proscribes en-
compasses more than the one proscribed by §186; in-
deed, the lesser-included-offense doctrine presupposes
that to be so.
Second, for the purpose of the Blockburger test, it
is true that RICO (as we submit it should be construed)??
requires proof of a fact — the pattern-enterprise nexus
— that §186 does not, but the converse, which must also
be true, is not.
’' §186, although listed as a predicate offense, was not discussed
in the committee reports or in the floor debates.
If, as held below, the pattern-enterprise nexus may be satisfied
by showing merely that ‘‘one is enabled to commit the predicate of-
fenses solely by virtue of his position in the enterprise,’’ then
neither statute requires proof of a fact not required by the other,
and under the Blockburger test there is double jeopardy.
22
Third, the dictum in United States v. Rone that the
court below chose to rely on*’.is erroneous under this
Court’s opinion in Whalen v. United States, supra.
In Whalen, the Court held that the offense of rape
merged into the offense of felony murder. The Court
referred to the judicial ‘‘assumption’’ set forth in
Blockburger that ‘‘Congress ordinarily does not intend
to punish the same offense under two different
statutes.’’ 445 U.S. at 691-92. This presumption is for-
tified by the Fifth Amendment’s protection against dou-
ble jeopardy in the form of ‘‘ ‘multiple punishments for
the same offense’.’’ Jd. at 688. ‘‘Accordingly, where two
statutory provisions proscribe that ‘same offense,’ they
are construed not to authorize cumulative punishments
in the absence of a clear indication of contrary legislative
intent.’’ Id. at 692 (emphasis added). There is no deny-
ing that the predicate offenses here are lesser-included-
offenses within the RICO violation and the court below
has cited nothing to overcome the presumption that
Congress intended such offenses to merge.**
*> “There is nothing in the RICO statutory scheme which would
suggest that Congress intended to preclude separate convictions or
consecutive sentences for a RICO offense and the underlying or
predicate crimes which make up the racketeering pattern.’’ 598 F.2d
at 571. In addition to this dictum, Rone contained another, ignored
by the court below, pointing in the opposite direction: ‘‘If the
RICO §1962(c) charge was based solely on the two extortions (of
which the defendant had been separately convicted and on which he
had been cumulatively sentenced), there might be problems under
Blockburger.”’ Id.
** The government relied below on the provision in §904 (a) of
the Organized Crime Control Act, Pub. L. No. 91-452, 84 Stat. 941
(1970), that the act ‘‘should be liberally construed to effectuate its
remedial purposes.’’ That provision, however, gives the government
23
There can be no doubt that Congress intended in
RICO that, for participating in the conduct of the affairs
of an enterprise by a pattern of two or more predicate
acts, an individual becomes liable to the greater RICO
no support. Since RICO, in addition to its criminal provisions, does
have provisions to effectuate its ‘‘remedial purposes’’ (see 18 U.S.C.
1964), §904(a) can be given its full effect by applying it to those
remedial provisions. There is nothing to indicate shat Congress
meant, by enacting that section, to intrude into the process of
criminal adjudication. It strongly appears that in §904(a), Congress
was focusing on the novel remedies created by RICO for combatting
organized crime. What was innovative about RICO was the provi-
sion for civil remedies and forfeitures. The Senate Report proudly
announced: ‘‘Title IX [i.e., R/CO] thus brings to bear on the in-
filtration of organized crime into legitimate business or other
Organizations the full panoply of civil remedies, including a civil in-
vestigative demand, now available in the antitrust area. The use of
such remedies as prohibitory injunctions and the issuing of orders
of divestment or dissolution is explicitly authorized. Nevertheless, it
must be emphasized that these remedies are not exclusive, and that
title IX seeks essentially an economic, not a punitive goal.’’ S. Rep.
No. 91-617, 91st Cong., Ist Sess. 91 (1969) (emphasis added). Thus,
in §904(a), Congress did not provide that RICO shall be construed
liberally in general, but rather that it ‘‘shall be liberally construed to
effectuate ifs remedial purposes’? (emphasis added). These
‘‘remedial purposes’’ are the ‘‘economic, not punitive’’ purposes ex-
plained in the Senate Committee Report. And what is to be con-
strued liberally is not the definition of the R!CO offense, but the
provisions for civil remedies, as highlighted in the Committee
Report.
As Judge Taylor said of §904(a) in United States v. Mandel,
415 F. Supp. 997, 1022 (D. Md. 1976):
‘““While Congress may instruct courts to give broad interpreta-
tions to civil provisions, it cannot require courts to abandon
the traditional canon of interpretation that ambiguities in
criminal statutes are to be construed in favor of leniency.
Rewis v. United States, [401 U.S. 808 (1971)]; Bell v. United
States, 349 U.S. 81 ... (1955). To do so would be to violate
the principles of due process on which the canon of interpreta-
tion rests.’’
24
penalty. However, the government’s position that Con-
gress also intended to subject the individual to both the
greater and the lesser penaities — especially where the
lesser, predicate offenses are mere non-mens rea misde-
meanors having no bearing on the affairs of the enter-
prise — is ‘‘based on no more than a guess as to what
Congress intended.’’ Ladner v. United States, 358 U.S.
169, 178 (1958).
We submit that the question here presented, so
basically important to prosecutors in constructing RICO
cases, to trial courts in framing their jury instructions
and their sentences, and, not least, to defendants who
find themselves convicted under RICO, should receive
this Court’s considerations.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
EDWARD BENNETT WILLIAMS
HAROLD UNGAR
RICHARD M. COOPER
WILLIAMS & CONNOLLY
839 17th Street, N.W.
Washington, D.C. 20006
(202) 331-5000
Counsel for Petitioner
Anthony M. Scotto
APPENDIX A
Opinion Below
la
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Nos. 1131-32 — September Term, 1979
(Argued May 20, 1980
Decided September 2, 1980)
Docket Nos. 80-1041, -1044
UNITED STATES OF AMERICA, Appellee,
Vv.
ANTHONY M. Scotto and
ANTHONY ANASTASIO, Appellants.
(Filed September 2, 1980)
Before OAKEs and MESKILL, Circuit Judges, and BonsAL,
District Judge. *
Appeal from judgments after a jury trial entered in the
United States District Court for the Southern District of New
York, Charles E. Stewart, Judge, convicting appellant Scotto
of violation of the Racketeer Influenced and Corrupt
Organizations (RICO) statute, 18 U.S.C. §1962(c), and con-
victing appellants Scotto and Anastasio of conspiracy to
violate the RICO statute, 18 U.S.C. §1962(d), Taft-Hartley
violations, 29 U.S.C. §186(b), and income tax violations, 26
U.S.C. §§7201, 7206(1). Over allegations of errors in the
district court’s charges to the jury and rulings on appellants’
misjoinder claims, the judgments are affirmed.
EDWARD BENNETT WILLIAMS
Washington, D.C. (Williams
& Connolly, Harold
Ungar, Richard M.
Cooper, of counsel),
for Appellant Scotto.
* Senior District Judge of the Southern District of New York, sit-
ting by designation.
2a
MICHAEL E. TIGAR
Washington, D.C. (John
Mage, Lynne Bernabei,
Washington, D.C., Gustave
H. Newman, New York,
New York, of counsel),
for Appellant Anastasio.
ALAN LEVINE
Assistant United States
Attorney (William M.
Tendy, United States
Attorney for the Southern
District of New York,
Scott W. Muller, Howard
W. Goldstein, Assistant
United States Attorneys,
of counsel), for Appellee.
OAKES, Circuit Judge:
Anthony M. Scotto and Anthony Anastasio, not con-
testing the sufficiency of the evidence, appeal from judgments
of convictions on forty-three counts entered after an eight-
week jury trial in the United States District Court for the
Southern District of New York, Charles E. Stewart, Judge.
The counts included one against Scotto, then president of
Local 1814 of the International Longshoremen’s Association
(ILA), for participating in the affairs of the ILA through a
pattern of racketeering activity from 1974 through part of
January 1979 in violation of 18 U.S.C. §1962(c) (Count 1); a
count charging both Scotto and Anastasio, then executive vice
president of Local 1814, with conspiring to participate in the
affairs of the ILA through a pattern of racketeering activity,
in violation of 18 U.S.C. §1962(d) (Count 50); twenty-four
counts against Scotto (Counts 2-9, 16-30, 34), eight counts
against Anastasio (38-45) and three counts against both
(Counts 35-37) for demanding and receiving unlawful ‘‘labor’’
3a
payments totalling in excess of $250,000, in violation of the
Taft-Hartley Act, 29 U.S.C. §186(b); and four counts against
Scotto (Counts 53-56) and two counts against Anastasio
(Counts 59, 60) for failure to report and pay federal income
taxes on the unlawful amounts obtained from the foregoing
activities, in violation of 26 U.S.C. §§7201 and 7206(1). The
jury was unable to reach a verdict on seventeen other counts
alleging additional Taft-Hartley and tax violations (Counts
10-15, 31-33, 46-49, 51-52, 57-58). The sentences are set out in
the margin.' We affirm the judgments.
' Scotto was sentenced to five years’ imprisonment and a $25,000
fine on Count 1; consecutive one-year terms of imprisonment on
Counts 2-6, for a total of five years, to run concurrently with the
sentence imposed on Count 1; $5,000 fines on Counts 2-6, totaling
$25,000; five years’ probation on each of Counts 7-9, to run con-
currently and to commence upon expiration of the period of in-
carceration; $5,000 fines on Counts 16-20, totaling $25,000; a
suspended sentence and five years’ probation on Counts 21-30 and
34-37; a suspended sentence, five years’ probation to run concur-
rently with the sentence imposed on Count 1, and a $25,000 fine on
Count 50; five years’ imprisonment on each of Counts 53 and 55,
to run concurrently with the sentence on Count 1; and three years’
imprisonment on each of Counts 54 and 56, to run concurrently
and concurrently with the sentence imposed on Count 1. Thus, the
effective sentence imposed on Scotto was five years’ imprisonment,
with five years’ probation following completion of his prison term,
and $75,000 in fines.
Anastasio was sentenced to concurrent one-year terms of im-
prisonment and concurrent fines of $5,000 on Counts 38-42; con-
current one-year terms of imprisonment, consecutive to the one-
year term imposed on Count 38, and concurrent $5,000 fines on
Counts 35-37 and 43-45, the fines imposed concurrently with the
$5,000 concurrent fines on Counts 38-42; a concurrent two-year
term of imprisonment and concurrent $5,000 fine on Count 50; and
a suspended sentence and five years’ probation on Counts 59-60.
This amounted to an effective sentence of two years in prison, five
years’ probation, and a $5,000 fine.
4a
FACTS
From 1975 through 1979, appellant Scotto was president
of ILA Local 1814 in Brooklyn and vice president for
legislative affairs for the ILA nationally. From 1975 through
April of 1978, Anastasio was secretary-treasurer of an
associated ILA local in Brooklyn, and he subsequently
became executive vice president of Scotto’s Local 1814. He
was also an ILA national organizer. The Government’s
evidence was that they individually and jointly received illegal
labor payoffs during the period from 1975 through 1979 from
six separate waterfront businesses employing ILA members.
The evidence siowed the receipt of more than forty separate
cash payments, some as high as $15,000, as kickbacks or com-
missions on business and as ‘‘extra’’ Christmas bonuses.
Walter D. O’Hearn, chief executive of John W. McGrath
Corp. of Brooklyn, a stevedore company, paid Scotto $15,000
quarterly and $5,000 at Christmas, for a total of $65,000 an-
nually, to obtain his assistance in reducing fraudulent and ex-
aggerated workmen’s compensation ciaims filed by members
of Scotto’s local. William Montella, generai manager of Quin
Marine Services, Inc., of Brooklyn, paid Scotto $5,000
quarterly and $5,000 extra each Christmas for a three-year
period to secure his assistance in getting new business and
keeping existing customers from competitor shipping and
stevedoring companies with which Scotto dealt as a labor
leader. Nicholas Seregos of Jackson Engineering Co., Inc., an
ILA-affiliated marine engineering company doing general ship
repair, paid Anastasio a 10% ‘‘commission’’ on business ob-
tained for his company with Scotto’s and Anastasio’s
assistance from Prudential Lines, Inc., and United States
Lines. Additionally, other cash payments of thousands of
dollars were received by Scotto alone or by Scotto and
Anastasio from individuals representing waterfront employers
of ILA labor, including C. C. Lumber Co. of Brooklyn,
American Navigation Co. of Baltimore, Marine Repair Ser-
vices, Inc., of Staten Island, and Joseph Vinal Ship
Maintenance Co. of Manhattan. The proof also established
Sa
that Scotto and Anastasio failed to declare the payoffs on
their federal income tax returns, amounting in Scotto’s case to
$69,700 in 1975, $90,000 in 1976, and $83,500 in 1977, and in
Anastasio’s case to $6,500 in 1976 and $16,500 in 1977.
Scotto, who took the stand in his own defense, denied
receiving any payments from Montella or O’Hearn before
January of 1977. As to the payments made thereafter, Scotto
admitted accepting them, but claimed he was acting only as a
conduit for campaign contributions, $50,000 to the 1977 New
York City mayoral campaign of Mario Cuomo, and $25,000
to the 1978 New York State gubernatorial campaign of Gover-
nor Hugh Carey. Louis Valentino, a state Official, testified
that he received the $50,000 in cash for the Cuomo campaign
from Anastasio at Scotto’s direction, and Joseph Colozza, an
ILA official from Scotto’s local in charge of Governor
Carey’s Queens campaign, testified to receiving $25,000 in
cash from Scotto. However, no records of these transactions
and no reports to the New York State Board of Elections
were ever made. Cross-examination of Scotto revealed that, in
a tape-recorded conversation with Montella in October 1978,
Scotto said that if any inquiries were ever made, he would
claim the illegal monies received were for political and
charitable contributions. Scotto denied the 10% commission
arrangement with Nicholas Seregos, as well as receipt of any
cash payoffs by Scotto and Anastasio from Joseph Vinal Ship
Maintenance Co. or Marine Repair Services, Inc. He ex-
plained that the cash payment from Joseph Lacqua, an officer
of C.C. Lumber Co. and American Navigation Co., was in-
tended for and ultimately given to Scotto’s wife. The jury
disbelieved the ‘‘conduit’’ defense and other exculpatory
testimony,
Anastasio did not testify on his own behalf. He did call
one character witness and Anthony Valvo, a shop steward
who testified to contacting Anastasio on behalf of Seregos in
1974 concerning the unionizing of Jackson Engineering Co.
6a
Discussion
I. The RICO and RICO conspiracy convictions — instruc-
tion on the element of ‘‘conduct of [the] enterprise's af-
fairs”’
Among the principal arguments on appeal are those
focusing on the ‘‘RICO”’ and ‘‘RICO conspiracy’’ convic-
tions. RICO, an acronym for that part of the Organized
Crime Control Act of 1970 dealing with Racketeer Influenced
and Corrupt Organizations, 18 U.S.C. §§1961-68; see general-
ly H.R. Rep. No. 91-1549, 91st Cong., 2d Sess., reprinted in
[1970] U.S. Code Cong. & Ad. News 4007, 4010, 4032-33,
specifically includes within its definition of ‘‘racketeering ac-
tivity’’ a wide variety of serious criminal acts under federal
and state law, among them ‘‘any act which is indictable under
title 29, United States Code, section 186 (dealing with restric-
tions on payments and loans to labor organizations).’’ Jd.
§1961(1)(C). It furthermore defines ‘‘pattern of racketeering
activity’’ as ‘‘requir[ing] at least two acts of racketeering ac-
tivity.”’ Id. §1961(5). The term ‘‘enterprise’’ includes ‘‘any
union.”’ Jd. §1961(4). Under 18 U.S.C. §1962(c),’ it is
? 18 U.S.C. §1962 provides in part:
(a) It shall be unlawful for any person who has received any
income derived, directly or indirectly, from a pattern of
racketeering activity . . . to use or invest, directly or indirectly,
any part of such income, or the proceeds of such income, in ac-
quisition of any interest in, or the establishment or operation
of, any enterprise which is engaged in or the activities of which
affect, interstate or foreign commerce... .
(b) It shall be unlawful for any person through a pattern of
racketeering activity .. . to acquire or maintain, directly or in-
directly, any interest in or control of any enterprise which is
engaged in, or the activities of which affect, interstate or
foreign commerce.
(c) 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 commerce, to conduct or
participate, directly or indirectly, in the conduct of such enter-
prise’s affairs through a pattern of racketeering activity... .
(d) It shall be unlawful for any person to conspire to violate
any of the provisions of subsections (a), (b), or (c) of this sec-
tion.
7a
unlawful ‘‘for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, in-
terstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s af-
fairs through a pattern of racketeering activity... .’’ Jd.
There also is a prohibition against ““conspir[ing] to violate any
of the provisions’’ of subsection (c) of §1962. Jd. (d).
The RICO statute has been upheld as not unconstitu-
tionally vague. E.g., United States v. Huber, 603 F.2d 387,
393 (2d Cir. 1979), cert. denied, 100 S. Ct. 1312 (1980);
United States v. Swiderski, 593 F.2d 1246, 1249 (D.C. Cir.
1978), cert. denied, 441 U.S. 933 (1979); United States v.
Campanale, 518 F.2d 352, 364 (9th Cir, 1975) (per curiam),
cert. denied, 423 U.S. 1050 (1976); United States v. Field, 432
F. Supp. 55, 58 (S.D.N.Y. 1977), aff'd, 578 F.2d 137] (2d
Cir.), cert. dismissed, 439 U.S. 801 (1978). It has been applied
in a variety of circumstances, e.g., United States v. Boylan,
620 F.2d 359, 360-62 (2d Cir, 1980) (RICO count and illezal
labor payments counts not multiplicitous and not violative of
double jeopardy; RICO count does not include separate
scienter element over and above that required for predicate
crimes), petition for cert. filed, 48 U.S.L.W. 3787 (U.S. May
20, 1980); United States v. Weisman, No. 79-1315, slip op. at
2229 (2d Cir. Apr. 4, 1980), petition for cert. filed, 49
U.S.L.W. 3018 (U.S. July 10, 1980) (affairs of theater con-
ducted through a pattern of racketeering activity including
predicate acts of securities and bankruptcy fraud); United
States v. Huber, supra, 603 F.2d at 387 (pattern of racketeer-
ing activity involving fraudulent execution of medical services
and supplies contracts by a group of corporations).
Appellant Scotto’s basic argument is that the jury was in-
adequately instructed on the issue whether he conducted the
union’s affairs through a pattern of racketeering activity,
namely through the Taft-Hartley violations. He Suggests that
the district court’s charge was inadequate because of a failure
to require a sufficient nexus between the predicate misconduct
and the conduct of the enterprise, and a failure to explore
8a
more fully the statutory language pertaining to the ‘‘conduct
of such enterprise’s affairs.’’ Scotto notes that in cases in
which an established legitimate entity as opposed to a criminal
enterprise is involved, the conduct of the affairs element
assumes great significance. Appellant places principal reliance
on United States v. Nerone, 563 F.2d 836, 851-52 (7th Cir.
1977), cert. denied, 435 U.S. 951 (1978), holding that the
Government’s case failed because of inadequate proof of a
connection between the racketeering activities, illegal gam-
bling, and the corporation operating the trailer park where the
gambling occurred. See also United States v. Huber, supra,
603 F.2d at 395 (summarizing Nerone). He also cites, among
other cases, United States v. Dennis, 458 F. Supp. 197 (E.D.
Mo. 1978), in which the court found an indictment faulty
under RICO because of its failure to assert any nexus between
the alleged activities and the conduct of the enterprise. The
court noted: ‘‘*The mere fact that defendant is employed by
the enterprise [General Motors Assembly Division] and col-
lects unlawful debts on the premises of the enterprise .
does not establish that the defendant participated in the con-
duct of the enterprise’s affairs through the collection of the
debts.”’ /d. at 199.
The Government first argues that Scotto failed properly
to preserve this claim regarding the court’s jury charge. It is
true that the district court during an all-day charging con-
ference read verbatim the portion of its charge about which
Scotto now complains and that defense counsel at that time
declined to object to the charge. However, Scotto did both
submit his own request to charge on the subject’ and make a
‘ The statute requires not only that you find two substantive
crimes to establish a pattern of racketeering activity, you must
also find that the defendant Scotto conducted the affairs of the
1.L.A. through the alleged pattern of racketeering. In order to
find that the defendant Scotto conducted the I.L.A.’s affairs
through a pattern of racketeering, you must find that both of
the alleged labor violations concerned or related to the opera-
tion or management of the enterprise. You must find that the
pattern of racketeering [a]ffected the affairs of the I.L.A. in its
essential functions. In order to find that the affairs of the
9a
blanket objection to the court’s failure to incorporate Scotto’s
Suggested charges in the court’s instructions. Assuming
without deciding that Scotto has preserved his appeal, we
reach the merits of this faulty instruction issue.
The district court instructed the jury that the Government
must prove beyond a reasonable doubt:
[T}hat through the two or more of these connected
racketeering offenses the defendant Scotto conducted or
participated directly or indirectly in the conduct of the af-
fairs of that enterprise.
And the court went on to explain:
[YJou must find beyond a reasonable doubt that the
defendant committed the two or more of the offenses
alleged in Counts 2 through 37 while and as part of con-
ducting or participating either directly or indirectly in the
conduct of the affairs of the enterprise.
In this regard it is not necessary for the Government to
prove that the affairs of the enterprise were advanced by
the defendant’s activities, although you may find this to
be true, or that the particular enterprise was corrupt or
that the enterprise authorized the defendant to commit
the particular acts of racketeering activity alleged.
It is only necessary to find that the acts were commit-
ted by the defendant or caused to be committed by him
in the conduct of, or his participation in, the affairs of
the enterprise. (Emphasis added.)
1.L.A. were conducted through a pattern of racketeering you
must find beyond a reasonable doubt that there was @ connec-
tion between the so-called acts of racketeering and the affairs
Of the 1.L.A. If this essential connection has not been proved
then you must acquit the defendant Scotto of the charge in
Count I, even if you find that all of the alleged payments were
unlawfully made. (Emphasis added.) Appendix to Brief of Ap-
pellant Scotto at 46,
10a
Appellant wanted the court to state that the jury was re-
quired to find that the predicate acts ‘‘concerned or related to
the operation or management of the enterprise’? and
“‘lalffected the affairs of the I.L.A. in its essential func-
tions.’’ But appellant cites no case demanding that a jury
charge include his proposed or similar language. United States
v. Huber, supra, and United States v. Nerone, supra, two of
the cases upon which appellant relies, involved challenges to
allegations in the indictment or to the sufficiency of the
evidence; they did not discuss the language to be used in
charging the jury about the conduct of the enterprise. In any
event, their holdings concerning the degree of interrelationship
required do not go as far as appellant would like. We agree
with Judge Pierce, in United States v. Stofsky, 409 F. Supp.
609 (S.D.N.Y. 1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert.
denied, 429 U.S. 819 (1976), that the statute ‘‘does not define
[the] connection by distinguishing between predicate acts
which play a major or a minor role, or any role at all, in
what might be seen as the usual operations of the enterprise;
nor does it require that such acts be in furtherance of the
enterprise... .’’ /d. at 613. The statute, then, declines to
define in quantitative terms the degree of interrelationship
between the pattern of racketeering and the conduct of the
enterprise’s affairs.
We think that one conducts the activities of an enterprise
through a pattern of racketeering when (1) one is enabled to
commit the predicate offenses solely by virtue of his position
in the enterprise or involvement in or control over the affairs
of the enterprise, or (2) the predicate offenses are related to
the activities of that enterprise. Simply committing predicate
acts which are unrelated to the enterprise or one’s position
within it would be insufficient. Cf. United States v. Rubin,
559 F.2d 975, 990 (Sth Cir. 1977), vacated on other grounds,
439 U.S. 810 (1978), rev’d in part on other grounds, 591 F.2d
278 (Sth Cir. 1979) (RICO requires ‘‘some relationship be-
tween the proscribed acts and the maintenance of union posi-
lla
tion’). But, as Judge Lasker noted in United States v. Field,
supra: .
Section 1962(c) nowhere requires proof regarding the ad-
vancement of the union’s affairs by the defendant’s ac-
tivities, or proof that the union itself is corrupt, or proof
that the union authorized the defendant to do whatever
acts form the basis for the charge. It requires only that
the government establish that the defendant’s acts were
committed in the conduct of the union’s affairs.
432 F. Supp. at 58. Furthermore, we do not think it necessary
for a person to solidify or otherwise enhance his position in
the enterprise through commission of the predicate violations.
The court below properly told the jury that it was
necessary to find that the defendant committed two or more
of the offenses alleged in Counts 2 through 37 ‘‘while and as
part of conducting or participating either directly or indirectly
in the conduct of the affairs of the enterprise.’’ The charge
did not have to require that the ILA was itself corrupted or
even that the union’s policies and administration were
changed by the racketeering pattern. Judge Stewart in this
case emphasized more clearly the need for a connection than a
charge upheld in United States v. Rubin, supra, 559 F.2d at
989-90. There, the Fifth Circuit declined to find reversible er-
ror in the district court’s failure to add to the charge the
defendant’s proffered words ‘‘by means of,’’ in addition to
the word ‘‘through,’”’ and approved an instruction, tracking
the language of §1962(c), that the Government had to prove
that the defendant participated in the affairs of the union
‘through’ the two or more offenses. We thus find no error
in this part of the charge.
Il. RICO — mens rea
Appellant Scotto argues that the RICO conviction is in-
valid and both appellants allege that the RICO conspiracy
convictions are invalid because the district court failed to in-
struct the jury adequately on mens rea. The Statute on its face
is silent on the issue of mens rea. Scotto attributes the lack of
12a
mens rea language in the RICO statute to a congressional
oversight. Appellants argue that this silence is ordinarily
overlooked because most of the predicate offenses listed in
§1961, such as murder, kidnapping, arson and robbery,
themselves require high degrees of mens rea. Unlike these
other listed predicate offenses, a Taft-Hartley violation of 29
U.S.C. §186* is a non-mens rea misdemeanor. Consequently,
their argument runs, a RICO indictment predicated solely on
violations of §186 could produce a twenty-year sentence
without any proof of mens rea, an unfair result, unless RICO
itself supplies some additional mens rea requirement.
As we recently stated in United States v. Boylan, 620
F.2d at 361-62, ‘‘[t]he RICO count does not include a scienter
element over and above that required by the predicate crimes,
in this case the violations of 29 U.S.C. §186(b)(1).’’ The
charge delivered by the district court in Boylan, which im-
posed an intent element on the defendant as a taker of a
*29 U.S.C. §186 provides in part:
(a) It shall be unlawful for any employer or association of
employers or any person who acts as a labor relations expert,
adviser, Or consultant to an employer or who acts in the in-
terest of an employer to pay, lend, or deliver, or agree to pay,
lend, or deliver, any money or other thing of value —
(1) to any representative of any of his employees who
are employed in an industry affecting commerce; or
(2) to any labor organization, or any officer or employee
thereof, which represents, seeks to represent, or would ad-
mit to membership, any of the employees of such employer
who are employed in an industry affecting commerce; or
(4) to any officer or employee of a labor organization
engaged in an industry affecting commerce with intent to
influence him in respect to any of his actions, decisions, or
duties as a representative of employees or as such officer
or employee of such labor organization.
(b) (1) It shall be unlawful for any person to request, de-
mand, receive, or accept, Or agree to receive or accept, any
payment, loan, or delivery of any money or other thing of
value prohibited by subsection (a) of this section.
l3a
§186(a) payment, was upheld and characterized as **more
favorable to defendant than required by United States v. Ric-
ciardi, 357 F.2d 91, 99 (2d Cir. 1966).’’ Boylan, 620 F.2d at
362. In the instant case, Judge Stewart required the jury,
before it rendered RICO convictions, to find that the defen-
dant under consideration ‘‘acted wilfully and knowingly,’’
that he ‘‘knew what he was doing and that he did it
deliberately and voluntarily,’’ that he acted ‘*knowingly and
deliberately with a criminal motive or purpose,’’ and that he
‘““was aware of the general unlawful nature of his act.’’
Scotto further argues that the instruction was improper
because it did not require the jury to find a willful violation
of RICO. Relying on United States v. Winston, 558 F.2d 105,
107-09 (2d Cir. 1977), he defines the term ‘‘willfully’’ as in-
tentionally violating a ‘‘known legal duty.’’ Winston,
however, involved a violation of Subsection Tenth, §2 of the
Railway Labor Act, 45 U.S.C. §152, which specifically re-
quires a ‘‘willful failure ... to comply with the terms” of
other subsections of the law. The law at issue here does not
demand willful violations of the RICO statute, nor does it re-
quire willful violations of the predicate offenses, which would
make the Winston case analagous. Therefore, although the
Government concedes that willfully committing some unlawful
predicate act is necessary, no specific intent to engage in an
unlawful pattern of racketeering prohibited by RICO is re-
quired. Here, as in Boylan, we think the court’s charge was
favorable to the defendant because it permitted conviction
under RICO only if the jury found a ‘‘criminal motive or pur-
pose.’’ Even the cases cited by Scotto do not require as much.
The argument made by both appellants attacking the
district court’s view of the intent necessary for a RICO con-
spiracy conviction also lacks werit. In the part of the jury
charge dealing with the conspiracy count, Judge Stewart
repeated some of the language from _ his charge on the
substantive RICO offense. He also stated at one point that
appellants must be found to have “participated in the con-
spiracy with a specific and criminal intent, that is, a purpose
l4a
to violate the law.’’ If anything, the district court erred in
favor of the appellants by delivering this portion of the charge
in which it implied that a specific intent to violate the RICO
conspiracy provision was required. We have no reason to
believe, however, from the words of the statute or from
general criminal law doctrine, that the quantum of mens rea
required for a RICO conspiracy conviction should be different
from or greater than that required for a substantive RICO of-
fense. 18 U.S.C. §1962(d). See United States v. Feola, 420
U.S. 671, 686-88 (1975); United States v. Mauro, 501 F.2d 45,
51 (2d Cir.), cert. denied, 419 U.S. 969 (1974).
III. Section 186 counts as lesser included offenses in RICO
Appellant Scotto argues that multiple sentences, even if
concurrent, cannot be imposed for violations of RICO and
§186 because §186 Taft-Hartley Act violations are lesser in-
cluded offenses, citing United States vy. Umans, 368 F.2d 725,
730 (2d Cir. 1966), cert. dismissed, 389 U.S. 80 (1967). The
argument is that §186 violations are lesser included offenses
because all of their elements, plus other elements, must be
proved to show a RICO violation predicated as here on viola-
tions of §186. See Sansone vy. United States, 380 U.S. 343,
349-50 (1965) (defining lesser included offenses); United States
v. Markis, 352 F.2d 860, 865-67 (2d Cir. 1965), vacated on
other grounds, 387 U.S. 425 (1967).
This issue was, however, resolved contrary to appellant
Scotto’s position in United States v. Boylan, supra, 620 F.2d
at 360-61. In Boylan this court held that RICO and §186
violations are ‘‘separate crimes, separately punishable,’’
because they ‘‘do not proscribe the same act of transaction,
and they implement different congressional purposes.’ Jd. at
361. See also United States v. Rone, 598 F.2d 564, 571 (9th
Cir. 1979), cert. denied, 100 S. Ct. 1345 (1980).
IV. Violation of 29 U.S.C. §186(b)(1) is a RICO predicate
offense
Appellants contend that the only illegal payments that
can serve as predicate offenses to a RICO violation are those
1Sa
prohibited by 29 U.S.C. §186(a)(4) — a bribery provision. *
Here, the Taft-Hartley predicate offenses charged involved the
receipt of payments from an employer by a representative of
his employees in violation of §186(b). Because the definition
of ‘‘racketeering activity’ in 18 U.S.C. §1961(1)(C) makes a
violation of any part of §186 a sufficient predicate offense on
which to base a RICO conviction, we reject appellants’ claim.
The legislative history presented by appellant Anastasio fails
to convince us that the RICO statute should be given any
reading other than the one indicated by its words themselves.
V. The court’s charge on the elements of §186
Appellant Scotto contends that the district court im-
properly instructed the jury regarding the definition of the
“thing of value’’ required to be received for a §186(b) viola-
tion. This claim relates to his ‘‘conduit’’? defense that the
O’Hearn and Montella payments were for political campaign
contributions. The court’s charge defined ‘thing of value’’ as
‘any material thing with a monetary value’ and noted that
with respect to the conduit defense, the Government could not
prevail if, in addition to certain other facts, the jury found
that Scotto ‘‘did not benefit in any way by the payment or
delivery of the money to him.’’ This portion of the instruc-
tions was not expressly objected to at trial. Indeed, Scotto ex-
pressly agreed in the charging conference that he was required
not to ‘benefit’? from any payments. Nor was any objection
made during the charging conference, a transcript of which
we have reviewed, to the suggestion made by United States
Attorney Fiske and later incorporated in the charge that the
jury might find a benefit to Scotto simply from his delivery of
campaign contributions. While we have some doubt about
whether mere goodwill from delivering such contributions is
properly within the meaning of “thing of value’’ under
§186(b)(1), we do not find that part of the charge to con-
stitute ‘“‘plain error,’’ under Fed. R. Crim. P. 52(b), in the
context of long and complicated instructions. See United
* Id.
16a
States v. Calfon, 607 F.2d 29, 31 (2d Cir. 1979), cert. denied,
100 S. Ct. 1044 (1980).
Nor was the district court required, as Scotto contends,
to charge the jury that Scotto had to ‘‘know’’ that the benefit
he was receiving was a ‘‘thing of value’’ before he could be
convicted of a §186(b) violation. This issue was not raised
below and no such instruction was requested. Moreover,
nothing in the language of §186 requires knowledge that what
one is receiving is a ‘*thing of value.’’ But see United States v.
Holt, 333 F.2d 455, 456-57 (2d Cir. 1964), cert. denied, 380
U.S. 942 (1965) (instruction upheld requiring knowledge that
§186(b) payment was a thing of value and that it was being
given by an employing company to a union leader). All that is
required is an awareness of the benefit itself.
VI. Taxation of ‘‘things of value’’
In a rather farfetched argument, appellant Scotto main-
tains that his tax convictions under Counts 55-56 should be
reversed because the jury might have mistakenly thought that
an intangible benefit received from conveying political con-
tributions would constitute taxable income. He bases this con-
tention on the fact that the district court repeated the term
“‘things of value,’’ used earlier in discussing the Taft-Hartley
counts, to explain to the jury what constituted taxable in-
come. In the context of the entire charge, however, we believe
there was little or no chance that the jury would apply to the
tax counts the district court’s previous explanation of what
would be a sufficient ‘‘benefit’’ necessary to find guilt under
§186(b). Furthermore, the district court was not required as
Scotto contends to tell the jury that the defense to Counts 53
and 54 was different from that to Counts 55 and 56.
VII. Misjoinder of defendants
Appellant Anastasio argues that he was misjoined with
Scotto in violation of Fed. R. Crim. P. 8(b) and 14. We are
convinced that he failed to make before trial the 8(b) motion
which he now advances, as is required in order to preserve it
17a
on appeal. United States v. Papadakis, 510 F.2d 287, 300 (2d
Cir.), cert. denied, 421 U.S. 950 (1975). A proper 8(b) motion
must be granted if the indictment violates the rule. Anastasio
did make a timely motion under Rule 14, which provides for
the discretionary severance of either counts or defendants,
asking the district court to order a separate trial for each
defendant. Asserting that the 8(b) issue is dispositive,
however, he does not now argue on appeal that the trial judge
abused his discretion in denying the Rule 14 motion. Nor do
we think that there was such an abuse, since it was alleged
(and proven) that the codefendants participated as partners in
respect to certain of the payments.
Appellant Scotto offered a motion under Rule 8, as well
as a motion under Rule 14, before the trial began. He moved
pursuant to both rules to sever himself from Anastasio or, in
the alternative, to sever a number of new substantive Taft-
Hartley counts in a superseding indictment charging Anastasio
with the Seregos payments. Anastasio did not join in this mo-
tion, we assume for practical reasons since if the motion were
granted in the alternative he would be required to stand trial
twice.
On September 10, 1979, the day before the trial started,
the Government filed a superseding indictment, dropping a
mail fraud charge as well as four Taft-Hartley counts against
Scotto alone. At that time Scotto renewed his earlier
severance motions. In the alternative, Scotto moved to dismiss
the RICO conspiracy count on the ground that there were
now not one but multiple conspiracies charged. Anastasio’s
counsel ‘‘join[ed] in the application for a severance of [his]
client. ...’’ Neither defendant moved to sever the substan-
tive racketeering count and the Taft-Hartley counts against
Scotto alone from the other counts charging Scotto and
Anastasio together. Thus by the time the trial commenced
Anastasio had not moved the court to sever the charges
against Scotto alone from the charges against both Scotto and
himself. But even if Anastasio did properly raise the 8(b) issue
that he now argues, there were sufficient allegations and
18a
proof that Anastasio and Scotto participated in the same
series Of transactions, which included the racketeering counts
and the racketeering conspiracy counts. The former is thus in
no better a position than the appellant Cannatella in United
States v. Weisman, supra, slip op. at 2252-54, who was not
named in any RICO count or the securities fraud counts
charged in the indictment against the other defendants but
whose 8(b) motion was denied since, as the rule specifically
provides, ‘‘all of the defendants need not be charged in each
count.”’
Appellant Scotto also raises a misjoinder argument. Con-
cededly, he filed a timely motion pursuant to Rules 8 and 14,
which argued that the substantive Taft-Hartley counts against
Anastasio (Counts 38-49) were misjoined. Those counts
against Anastasio alone relate to different payments mad¢ by
Seregos of Jackson Engineering Co., Inc., in the years 1977,
1978, and 1979. Jackson Engineering is also a subject of the
Overt acts listed in the conspiracy count. Accordingly we do
not think that this joinder was erroneous. Even if it were er-
roneous, it would constitute harmless error in Scotto’s case.
United States v. Werner, 620 F.2d 922 (2d Cir. 1980).
We have carefully considered any and all other conten-
tions of the appellants and find them to be without merit.
Accordingly the judgments are affirmed.
APPENDIX B
Order of Mar. 6, 1981, Denying Rehearing.
19a
UNITED STATES COURT CF APPEALS SECOND CIRCUIT
At a stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States Court
House, in the City of New York, on the 6th day of March
one thousand nine hundred and eighty-one.
No. 80-1041 80-1044
UNITED STATES OF AMERICA, Plaintiff-A ppellee,
Fi
ANTHONY M. Scotto, ANTHONY ANASTASIO, VINCENT
MARINO, JosEPH Lacqua, Defendants,
ANTHONY M. Scotto, ANTHONY
ANASTASIO, Defendants-Appellants.
(Filed March 6, 1981)
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the defendant-appellant, Anthony M. Scotto,
Upon consideration by the panel that heard the appeal, it
is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in
regular active service and to any other judge on the panel that
heard the appeal and that no such judge has requested that a
vote be taken thereon.
/S/ A. DANIEL FUSARO
A. Daniel Fusaro,
Clerk
APPENDIX C
Statutes Involved
2la
Racketeer Influenced And Corrupt Organizations,
18 U.S.C. 1961, ef seg.
§1961. Definitions
As used in this chapter—
(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; (B) any act which is in-
dictable under any of the following provisions of title 18,
United States Code: Section 201 (relating to bribery), section
224 (relating to sports bribery), sections 471, 472, and 473
(relating to counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under section 659 is
felonious, section 664 (relating to embezzlement from pension
and welfare funds), sections 891-894 (relating to extortionate
credit transactions), section 1084 (relating to the transmission
of gambling information), section 1341 (relating to mail
fraud), section 1343 (relating to wire fraud), section 1503
(relating to obstruction of justice), section 1510 (relating to
obstruction of criminal investigations), section 1511 (relating
to the obstruction of State or local law enforcement), section
1951 (relating to interference with commerce, robbery, or ex-
tortion), section 1952 (relating to racketeering), section 1953
(relating to interstate transportation of wagering parapher-
nalia), section 1954 (relating to unlawful welfare fund
payments), section 1955 (relating to the prohibition of illegal
gambling businesses), sections 2314 and 2315 (relating to in-
terstate transportation of stolen property), sections 2341-2346
(relating to trafficking in contraband cigarettes), sections
2421-24 (relating to white slave traffic); (C) any act which is
indictable under title 29, United States Code, section 186
(dealing with restrictions on payments and loans to labor
Organizations) or section SOl(c) (relating to embezzlement
from union funds); or (D) any offense involving fraud con-
nected with a case under title 11, fraud in the sale of
securities, Or the felonious manufacture, importation, receiv-
PRECEDING PAGE WAS BLANK
3%.
Leal
ing, concealment, buying, selling, or otherwise dealing in nar-
cotic or other dangerous drugs, punishable under any law of
the United States;
(2) ‘‘State’? means any State of the United States, the
District of Columbia, the Coinmonwealth of Puerto Rico, any
territory or possession of the United States, any political sub-
division, or any department, agency, or instrumentality
thereof;
(3) “‘person’’ includes any individual or entity capable of
holding a legal or beneficial interest in property;
(4) ‘‘enterprise’’ includes any individual, partnership, cor-
poration, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity;
(5) “‘pattern of 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;
(6) ‘“‘unlawful debt’? means a debt (A) incurred or con-
tracted in gambling activity which was in violation of the law
of the United States, a State or political subdivision thereof,
or which is unenforceable under State or Federal law in whole
Or in part as to principal or interest because of the laws
relating to usury, and (B) which was incurred in connection
with the business of gambling in violation of the law of the
United States, a State or political subdivision thereof, or the
business of lending money or a thing of value at a rate
usurious under State or Federal law, where the usurious rate
is at least twice the enforceable rate;
(7) ‘racketeering investigator’’ means any attorney or in-
vestigator so designated by the Attorney General and charged
with the duty of enforcing or carrying into effect this chapter;
(8) ‘‘racketeering investigation’? means any inquiry con-
ducted by any racketeering investigator for the purpose of
ascertaining whether any person has been involved in any
23a
violation of this chapter or of any final order, judgment, or
decree of any court of the United States, duly entered in any
case Or proceeding arising under this chapter;
(9) *‘documentary material’’ includes any book, paper,
document, record, recording, or other material; and
(10) ‘‘Attorney General’’ includes the Attorney General
of the United States, the Deputy Attorney General of the
United States, any Assistant Attorney General of the United
States, Or any employee of the Department of Justice or any
employee of any department or agency of the United States so
designated by the Attorney General to carry out the powers
conferred on the Attorney General by this chapter. Any
department or agency so designated may use in investigations
authorized by this chapter either the investigative provisions
of this chapter or the investigative power of such department
or agency otherwise conferred by law.
§1962. Prohibited activities
(a) It shall be unlawful for any person who has received
any income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful debt
in which such person has participated as a principal within the
meaning of section 2, title 18, United States Code, to use or
invest, directly or indirectly, any part of such income, or the
proceeds of such income, in acquisition of any interest in, or
the establishment or operation of, any enterprise which is
engaged in, or the activities of which affect, interstate or
foreign commerce. A purchase of securities on the open
market for purposes of investment, and without the intention
of controlling or participating in the control of the issuer, or
of assisting another to do so, shall not be unlawful under this
subsection if the securities of the issuer held by the purchaser,
the members of his immediate family, and his or their ac-
complices in any pattern or racketeering activity or the collec-
tion of an unlawful debt after such purchase do not amount
in the aggregate to one percent of the Outstanding securities of
any One class, and do not confer, either in law or in fact, the
power to elect one or more directors of the issuer.
24a
(b) It shall be unlawful for any person through a pattern
of racketeering activity or through collection of an unlawful
debt to acquire Or maintain, directly or indirectly, any interest
in Or control of any enterprise which is engaged in, or the ac-
tivities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or forcign commerce, to conduct or
participate, directly or indirectly, in the conduct of such enter-
prise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.
(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.
§1963. Criminal penalties
(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 af-
fording a source of influence over, any enterprise which he
has established, operated, controlled, conducted, or par-
ticipated 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
jurisdiction 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 under this section, the
court shall authorize the Attorney General to seize all proper-
ty 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
2Sa
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 property, 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 alleg-
ed 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 under the customs laws shall 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.
§1964. Civil remedies
(a) The district courts of the United States shall have
jurisdiction to prevent and restrain violations of section 1962
of this chapter by issuing appropriate orders, including, but
not limited to: ordering any person to divest himself of any
interest, direct or indirect, in any enterprise; imposing
reasonable restrictions on the future activities or investments
of any person, including, but not limited to, prohibiting any
person from engaging in the same type of endeavor as the
enterprise engaged in, the activities of which affect interstate
or foreign commerce; or ordering dissolution or reorganiza-
tion of any enterprise, making due provision for the rights of
innocent persons.
(b) The Attorney General may institute proceedings under
this section. In any action brought by the United States under
this section, the court shall proceed as soon as practicable to
the hearing and determination thereof. Pending final deter-
mination thereof, the court may at any time enter such
restraining orders or prohibitions, or take such other actions,
including the acceptance of satisfactory performance bonds,
as it shall deem proper.
26a
(c) Any person injured in his business or property by
reason of a violation of section 1962 of this chapter may sue
therefor in any appropriate United States district court and
shall recover threefold the damages he sustains and the cost of
the suit, including a reasonable attorney’s fee.
(d) A final judgment or decree rendered in favor of the
United States in any criminal proceeding brought by the
United States under this chapter shall estop the defendant
from denying the essential allegations of the criminal offense
in any subsequent civil proceeding brought by the United
States.
* * *
Taft-Hartley Act, 29 U.S.C. 186
(a) It shall be unlawful for any employer or association
of employers or any person who acts as a labor relations ex-
pert, adviser, or consultant to an employer or who acts in the
interest of an employer to pay, lend, or deliver, or agree to
pay, lend, or deliver, any money or other thing of value—
(1) to any representative of any of his employees who
are employed in an industry affecting commerce; or
(2) to any labor organization, or any officer or
employee thereof, which represents, seeks to represent, or
would admit to membership, any of the employees of
such employer who are employed in an industry affecting
commerce; or
(3) to any employee or group or committee of
employees of such employer employed in an industry af-
fecting commerce in excess of their normal compensation
for the purpose of causing such employee or group or
committee directly or indirectly to influence any other
employees in the exercise of the right to organize and
bargain collectively through representatives of their own
choosing; or
(4) to any officer or employee of a labor organization
engaged in an industry affecting commerce with intent to
27a
influence him in respect to any of his actions, decisions,
or duties as a representative of employees or as such of-
ficer or employee of such labor organization.
(b)(1) It shall be unlawful for any person to request, de-
mand, receive, or accept, or agree to receive or accept, any
payment, loan, or delivery of any money or other thing of
value prohibited by subsection (a) of this section.
* * *
(d) Any person who willfully violates any of the provi-
sions of this section shall, upon conviction thereof, be guilty
of a misdemeanor and be subject to a fine of not more than
$10,000 or to imprisonment for not more than one year, or
both.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.