# Petition — Cauble v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0580%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1005 ## Text Office -Supreme Court, U.S, FILED 88-585 OT 7 1963 No. 83-__ La IN THE Supreme Court of the Gnited States OCTOBER TERM, 1983 Rex C. CAuBLe, Individually and Doing Business as Cauble Enterprises, Petitioner, Vv. UNITED STATES OF AMERICA. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MICHAEL E. TIGAR (Counsel of Record) SAMUEL J. BUFFONE JOHN J. PRIVITERA TIGAR & BUFFONE, A Professional Corporation 1302 18th Street, N.W. Washington, D.C. 20036 (202) 785-8900 MELVIN CARSON BRUDER BRUDER AND COOPER 2514 Cedar Springs Dallas, Texas 75201 (214) 742-3224 Attorneys for Petitioner ——, ST ST PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203 i QUESTIONS PRESENTED 1. Did the trial judge amend the indictment in this Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seg. (RICO) case and direct a verdict of guilt on the “enterprise” element of the RICO charge, in that: (a) the proof at trial showed that there was a sepa- rate, loose-knit enterprise-in-fact engaged in marijuana smuggling, assisted in its unlawful endeavors by at most a few of the constitutent entities and assets of the charged enterprise, Cauble Enterprises; and. (b) the trial judge charged in effect that the “enter- prise” was Cauble Enterprises, a Texas partnership con- sisting of dozens of entities and separate assets; and (c) the amendment of the indictment and direction of verdict of guilty usurped the jury’s role and masked a substantial variance between the indictment and the proof? 2. Did the multi-million dollar in personam forfeiture—the largest forfeiture in American history— violate due process of law and the plain meaning of RICO by forfeiting assets and entities whose activities had no nexus to any alleged or proven illegal conduct on the part of their owner, Rex C. Cauble? 3. Did the forfeiture order in this case violate due process of law by purporting to cut off, without notice and judicial hearing, the rights of innocent limited partners who under Texas law have an undivided interest in each of the assets of the partnership, Cauble Enterprises, when (a) the court held it has no discretion or power to modify a forfeiture to protect their interests; and ‘i (b) the court held that the third parties are remitted to an unreviewable administrative proceeding in the De- partment of Justice? 4. May acourt of appeals decline to follow clear prece- dent from this Court and affirm a conviction for misapplication of bank funds, 18 U.S.C. § 656, based upon repaid loans made with the approval of the bank’s board of directors and guaranteed by a person with more than ample resources to effect repayment? TABLE OF CONTENTS SEINE abo cs ch-0 8 0s ¥ 400.0 ede cued bes wealwen I nies b's a vbli de sibvdvececvtetbesiesesben CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED I SUE CONE nk bic wie cies vaccccrcadpanevas REASONS FOR GRANTING THE WRIT ............--+-5¢- I. II. III. IV. THE DISTRICT COURT AMENDED THE iw - DICTMENT AND DIRECTED A VERDICT OF GUILT ON THE ENTERPRISE ELEMENT. THE COURT OF APPEALS’ OPINION UP- HOLDS THIS PROCEDURE .................. THE IN PERSONAM FORFEITURE IN THIS CASE IS AT WAR WITH THE STATUTE AND VIOLATES DUE PROCESS OF LAW ......... A. The Unprecedented Forfeiture In This Case Is WEEE, icc kasekcbbnyadoveseteys B. This Court Should Provide Guidance To Trial Judges As To The Nexus Which Must Be Pleaded And Proved Between The Criminal Enterprise, The Racketeering Activity And PE OOO Sica ve ndnciwans savnathiae THIS COURT SHOULD DECIDE WHAT, IF ANY, DISCRETION A DISTRICT COURT JUDGE HAS UNDER 18 U.S.C. § 1963(a) WHEN AN IN PERSONAM FORFEITURE ORDER IS FINALLY LEVIED AGAINST PROPERTY IN WHICH THIRD PARTIES HAVE AN UNDI- VIDED INTEREST. THE COURTS OF APPEALS ARE IN DISARRAY ON THE ISSUE THE COURT OF APPEALS REJECTED PRE- CEDENT FROM THIS COURT IN UPHOLDING PETITIONER’S CONVICTION FOR MISAPPLICATION OF BANK FUNDS ....... RIN is oo Bee, kee et ekipewda woud cal 10 15 18 iv TABLE OF AUTHORITIES CASES: Page Armstrong v. Manzo, 380 U.S. 545 (1965) ........... 20 Boffa v. United States, 688 F.2d 919 (3d Cir. 1982), cert. SOE, TS Cs Be CSO) oc cecsccortae sain Colero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. EE Gos pac Pee ob ne Caneves's oPaeies 11, 20 Connecticut v. Johnson, 103 S.Ct. 969 (1983) ........ 8 Dunn v. United States, 442 U.S. 100 (1979) ... 8, 9, 13, 14 Farmers’ & M. Nat. Bank v. Dearing, 91 U.S. 29 (1875) 11 Fuentes v. Shevin, 407 U.S. 67 (1972) .............-. 20 Harmony v. United States, 43 U.S. (2 How.) 210 (1844) 12 Holland v. United States, 348 U.S. 121 (1954) ....... 17 Johnson v. Robison, 415 U.S. 361 (1974) ............ 19 King v. United States, 364 F.2d 235 (5th Cir. 1966) .. 11 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. Ng re as NY ee ee eo g ke wie The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) .......... 11 Russell v. United States, 369 U.S. 749 (1962) ....... 8, 22 Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) 20 Solem v. Helm, 103 S.Ct. 3001 (1983) ............... 16 Stirone v. United States, 361 U.S. 212 (1960) ........ 8 United Brotherhood of Carpenters & Joiners v. United GIR. EE Usd SOP ANOET) «6 oxic cadersncenenseepe 8, 9 United States v. Britton, 107 U.S. 655 (1883) ........ 22 United States v. Britton, 108 U.S. 193 (1883) ........ 22 mine pen v. Dennis, 458 F. Supp. 197 (E.D. Mo. United States v. Grande, 620 F.2d 1026 (4th Cir.), cert. denied, 449 1J.S. 830 (1980) ............ cece eee a _— v. Hamm, 659 F.2d 624 (5th Cir. 1981) (en Oe ee eo otae o's ibe Meme tile ses uae United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981) 3 United States v. Huber, 603 F.2d 387 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980) ............... 12, 14, 20 Vv Table of Authorities Continued Page United States v. L’Hoste, 609 F.2d 796 (5th Cir.), reh. den, 615 F.2d 383, cert. denied, 449 U.S. 833 RSE E TRIMS ES vite ity rad Sian ene late Cea 7, 14, 18, 20 United States v. Long, 654 F.2d 911 (3d Cir. 1981) ... 12 United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979), cer. denied, 445 U.S. 961 (1980) ................ 17 United States v. Mann, 517 F.2d 259 (5th Cir. 1975), cert. ‘ denied, 423 U.S. 1087 (1976) ...... BP Pee Ce 22 United States v. Martino, 681 F.2d 952 (5th Cir. 1982) (en banc), rev’g, 648 F.2d 367 (1981), cert. granted sub nom. Russello v. United States, 103 S.Ct. 721 (1983) 10 United States v. Nerone, 563 F.2d 836 (7th Cir. 1977), cert. denied, 435 U.S. 951 (1978) ...............-. 16 United States v. One 1936 Model Ford V8, 307 U.S. 219 BIN aiid eos aie Kd Gila cake down Deteee a eee een 11 United States v. One 1970 Buick Ser. 494870H910774, 463 F.2d 1168, (5th Cir.), cert. denied, 409 U.S. 980 ST As 65s as phic oaaee 600.00) sas op pee 19 United States v. One 1976 Mercedes Benz, 618 F.2d 453 > Mie UREA Garae nimi pepere it Se LF 5 oo Ses 11 United States v. One Tintoretto Painting, 691 F.2d 603 Se I HD ons va vies ..ccks2kcancdaeuenianens 19 United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982) ............... 16 United States v. Robinson, 30 F.2d 25 (6th Cir. 1929) . 22 United States v. Rodgers, 103 S.Ct. 2132 (1983) ...... 20 United States v. Ruppel, 666 F.2d 261 (5th Cir.), cert. denied, 102 S.Ct. 3487 (1982) ..............2008- 3 United States v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1981) .......ccccccccccces 17 United States v. Spilotro, 680 F.2d 612 (9th Cir. 1982) 20 United States v. Turkette, 452 U.S. 576 Pe sre or hoor kl cuales ema 7, 8, 9, 15, 16 United States v. Zang, 703 F.2d 1186 (10th Cir. DEE. Sesich vse ke ket sas tc unae (a0 ah eeeaee 14, 20 vi Table of Authorities Continued Page Vance v. United States, 676 F.2d 183 (5th Cir. 1982) . 11 Wallach v. Van Riswick, 92 U.S. 202 (1876) ......... 11 Williams v. United States, 458 U.S. 279 (1982) ..... 13, 14 STATUTES: se ME CLEMLS opine doa pda pebeaee caren ncewihe 7 Es EME. 6 Site on.0-o oad as ald ahve Reabeloe vusmael 20 IEEE id's aca'oigd v's db was cdeidbunn ne ee 14,21,2 SR ES an oo o% vin Soe nab oe + dh np amen emiess 1,4 Bey SAE MEE“ sao Clas « oo bine duu oe deueTeneue l WUBC. FISD 2... ..606 Sd « adiee oa bow ieee uae 2, 6, 14 Liaw inion aps heawadeneae tee 4, 6, 16 IEE POPP OCT ET eee Ter 4, 16 RRC EID o's sds con ccbcnsigadoekendammeer 4 ST EY, vine ou 600 6S) dened wees shbaeeeoke 2 Se IIIf oad. d.0 sits o.0.0-6.0 6 Sobol a orn wae 14, 18 PEE, . . n.c.c00 ccd bounasoaenaeenuun 19 Se SE fas ck aces acoepeepabake 2, 11, 12, 14, 15 REED. 3s nave Ses ou 0d dene epenceueedon 12 RE Sha, a's 00:0 ov'o os suena ne eeeke eae 4 MEE ci. -c.as bon oss docwcdbacsebans oeeeieen 2 POUND 0 a akc wun ce ob ehs ve aw eas ab 8, 12, 15 Ed din 6 dna 60's bs'> 0 veie Ooh ele Meee 9 rs S25. s 6dcs ved dad dase deabaeke kane 15 CONSTITUTIONAL AUTHORITIES: United States Constitution, Article III, Section3 .... 11 United States Constitution, Fifth Amendment ....... 2 United States Constitution, Eighth Amendment ..... 2 vii Table of Authorities Continued OTHER AUTHORITIES: 1 F. Pollock and F. Maitland, History of English Law (2d DECC a, Vk ods cnt dscd seuteh VAREU Marae eS 3 W. Holdsworth, History of English Law (2d ed. 1927) Act of April 30, 1790, Sec. 24, 1 Stat. 112 (1790) ..... Hearings concerning H.R. 3299, The Comprehensive Drug Penalty Act of 1983 Before the Subcom. on Crime of the House Com. on the Judiciary, 98th Cong., lst Sess. 16 (1983) (Statement of James I.K. Knapp, Deputy Assistant Attorney General, Crimi- EE 2 6 nin tS bi in kde bat evcrndeews seavee O. Holmes, The Common Law (1881) ................ RICO Forfeitures and the Rights of Innocent Third Par- ties, 18 Cal. W.L.Rev. 341 (1962) - .........ccceee Tarlow, RICO Revisited, 17 Ga.L.Rev. 291 (1983) .... U.S. Department of Justice, Narcotics Newsletter, vol. eg ee, A EE -db-vinicbscnsckuhsenvensoek ot Page 19 12 18 17 IN THE Supreme Court of the Anited States OCTOBER TERM, 1983 No. 83-___ Rex C. CAuBLE, Individually and Doing Business as Cauble Enterprises, Petitioner, v. UNITED STATES OF AMERICA. PETITION FOR .. WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT of Rex C. Cauble, individually and doing business as Cau- ble Enterprises, a Texas limited partnership, petitions this Court for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit, to review his conviction for violation of the Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. § 1961 et seq. (RICO), the Trave! Act, 18 U.S.C. § 1952, and 18 U.S.C. § 656 (misapplication of bank funds), his five year sent- ence, and the forfeiture order involving several millions of dollars in assets. OPINION BELOW The court of appeals opinion, reported at 706 F.2d 1322, is Appendix A. 2 JURISDICTION A timely petition for rehearing was denied August 11, 1983. Appendix D. This Court has jurisdiction under 28 U.S.C. § 1254. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED We rely throughout this petition upon the due process clause of the fifth ameniment. We maintain that the forfeiture order violates 18 U.S.C. § 3563 and the cruel and unusual punishment clause of the eighth amendment. We further contend that the provisions of RICO for determining criminal liability and penaities, 18 U.S.C. §§ 1962, 1963, were misapplied. The text of each of these provisions is reprinted as Appendix E. STATEMENT OF THE CASE Rex C. Cauble is a 70-year old Texas businessman with no previous criminal record. He is one of the founders and is the general partner of Cauble Enterprises, a Texas limited partnership in which he holds approximately 31%; his wife and son are the limited partners. The government’s chief appellate attorney has written that this case involves “what is probably the biggest forfeiture in American history” and that the court of appeals’ opinion is “an encyclopedia of RICO law.”' We seek certiorari because this forfeiture poses a serious threat to the due process values reflected in 18 U.S.C. § 3563 and misconceives RICO; further, the “encyc- lopedia” is seriously flawed. The government amply proved that tons of marijuana were smuggled into the United States aboard four fishing ‘U.S. Department of Justice, Narcotics Newsletter, vol. V, no. 5, June, 1983, p. 11. 3 vessels, with the participation of Cauble’s ranch foreman Charles “Muscles” Foster and two former employees of Cauble Enterprises’ many businesses and entities. This marijuana smuggling activity had been the subject of earlier cases, in which the government’s theory had been that others than Cauble played a directing role.’ Foster was acquitted in one of these earlier cases by reason of insanity. There is no question that Cauble and banks in which he was a principal stockholder loaned Foster money during this period, nor that the loans were repaid. There is no question that Foster and others used ranches owned by Cauble Enterprises to store, weigh and repack- age marijuana shipments trucked from the coastal off- loading sites. Alleged conspirators stayed in an apart- ment owned by Cutter Bill, a Western clothing chain owned by Cauble Enterprises. The alleged conspirators also used an airplane owned by Cauble Enterprises, pay- ing for such use on each occasion. The leading figures in the smuggling operation por- trayed themselves, according to Cauble and other de- fense witnesses, as young, wealthy individuals interested in ranching and cattle purchases. Indeed, one of them, Hawkins, did buy ranchland from Cauble Enterprises, and there was evidence from which cattle sales to these inuividuals could be inferred. Cauble maintained that he had no knowledge of the smuggling activities, and there was evidence that he had not visited most of these ranch properties for some years; other witnesses, including participants in the importation scheme, testified that the smugglers actively sought to keep Cauble unaware of their illegal activities. * See United States v. Ruppel, 666 F .2d 261 (5th Cir.), cert. denied, 102 S.Ct. 3487 (1982); United States v. Hamm, 659 F.2d 624 (5th Cir. 1981) (en banc); United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981). 4 The government also presented evidence of cash de- posits to Cauble Enterprises’ accounts, claiming that the size and timing of these deposits was consistent with Cauble’s knowledge and with investment of the proceeds of illegality. Cauble testified that these deposits repre- sented cash cattle sales and gambling winnings, which was corroborated by notations on the deposit slips. 706 F.2d at 1339 n.55; 23a n.55. The court of appeals concluded, based upon a review of the record, that the mostly-circumstantial evidence of Cauble’s activities would justify a reasonable jury in rejecting his defense of lack of knowledge. To be sure, the - witnesses whose testimony would have supported the government’s theory were drawn from the ranks of the already-convicted, and were subject to substantial impeachment. But those questions of credibility, the court of appeals concluded, were for the jury. The jury convicted Cauble of conspiracy to violate RICO, 18 U.S.C. § 1962(d); investment of proceeds of unlawful activity, 18 U.S.C. § 1962(a); and conduct of an enterprise through a pattern of racketeering activity, 18 U.S.C. § 1962(c). The predicate offenses for each of these counts were six alleged violations of 18 U.S.C. § 1952, the Travel Act, and six alleged violations of 21 U.S.C. § 952, marijuana smuggling. Each smuggling predicate was mirrored in one of the Travel Act predicates. (There was an additional Travel Act predicate in each RICO count as well.) The indictment also charged, and the jury convicted on, other Travel Act counts not made RICO predicates. Finally, Cauble was convicted of misapplication of bank funds, 18 U.S.C § 656, on the basis of four repaid loans made to Foster by banks in which Cauble had an interest. 5 The indictment contained a “Notice of Holdings Sub- ject to Forfeiture.” This list, attached as Appendix B, purported to incorporate by reference the Articles of Limited Partnership of Cauble Enterprises, but in fact the Articles were never made part of the trial record. The list includes a number of ranches, Cutter Bill Western Wear, a steel company, a trailer company, and Cauble’s personal controlling interest in three banks which Cauble Enterprises, as a Texas limited partnership, could not own under Texas law. See 61a n.6. An analysis of these assets, complete with record references, is attached as Appendix C. The court of appeals’ opinion contains its detailed analysis of the record. Our petition focuses upon that court’s characterization of what was done in the trial court, and upon its refusal to limit the reach of RICO to assets found culpably related to the conduct of the unlaw- ful activity. We note, as Appendix F makes clear, that the marijuana smuggling activities of the principals in the scheme antedated Cauble’s alleged involvement. They had already imported and distributed at least one large load before they had any significant contact with him; this much is conceded, at least implicitly, by the government not charging him with any crime in connection with that importation. Second, we focus upon the RICO element of “enter- prise,” and the requirement of a “nexus” between the enterprise and the defendant’s conduct. This aspect of RICO is vital not only to considering the sentence of imprisonment imposed on the RICO counts, but also to review of whether the forfeiture ordered is out of all proportion to alleged guilt, in violation of constitutional strictures and RICO’s plain language. 6 The government alleged that Cauble Enterprises was the RICO enterprise. Its proof at trial showed that a loose-knit enterprise-in-fact was engaged in marijuana smuggling and began at some point to use some of Cauble Enterprises’ assets and entities in furtherance of its acti- vities. This variance presented at least a jury issue as to whether Cauble was guilty of the conduct the indictment charged. The district judge’s charge on the enterprise and “neaxus”—in statutory terms, “conduct. . . through,” 18 U.S.C. § 1962(c)—was barren of explanatory content. The court of appeals sustained his simply telling the jury that “the enterprise charged in this case in [the RICO counts]... is Cauble Enterprises,” and giving the jury no clear statement that might have permitted it to decide otherwise. Following the jury’s verdict of guilty, the court then submitted a forfeiture inquiry. The jury was asked (a) whether Cauble maintained his interest in Cauble Enter- prises in violation of 18 U.S.C. § 1962, (b) whether his interest afforded a source of control over the enterprise, and (c) whether the entirety of that interest would be forfeited. The jury responded affirmatively to each ques- tion. 706 F.2d at 1346 n.90; 38a n.90. The record is barren of a complete and authoritive listing of Cauble Enterprises’ many assets—ranches, separate business corporations, shares of stock, build- ings, and so forth. The jury was not asked te determine the forfeiture question on an individual asset oasis. The court of appeals, declining to find and observe limits on RICO’s forfeiture provisions that might have resulted from studying the opinions of other circuits, upheld the trial court’s action and the jury’s verdict. a4 7 The result was that Cauble has been ordered to forfeit not only his position as general partner, but all of his interest in every one of Cauble Enterprises’ assets. Given the fact, undisputed on this record, that Cauble, his wife and son elected many years ago to place almost all of their assets in the partnership form, Cauble has effectively been stripped of his entire estate.’ The forfeiture order may also adversely affect the in- terests of the limited partners, who have never had notice or judicial hearing. The court of appeals waived away such objections, relying upon its decision in United States v. L’Hoste, 609 F.2d 796 (5th Cir.), reh. den, 615¥.2d 383, cert. denied, 449 U.S. 833 (1980), remitting the limited partners to their administrative remedy in the Depart- ment of Justice, 28 C.F.R. §§ 9.1-9.7 (1982). REASONS FOR GRANTING THE WRIT The manner in which this case was pleaded, proved and charged to the jury raises compelling constitutional and important statutory issues. We first analyze the “enter- prise” element of the RICO offenses in light of the teach- ings in United States v. Turkette, 452 U.S. 576 (1981) and then address the massive, in personam forfeiture. The issues are interrelated, bound by a common con- cern with the “enterprise” and “conduct ... through” | elements of a RICO offense. The latter element we, con- sistent with the court of appeals’ usage, have termed the “nexus” requirement. ‘The court of appeals relied extensively upon Cauble’s trial coun- sel’s failure to raise objections to jury instructions. Appellate coun- sel, also counsel in this Court, has claimed plain error as to some questions of alleged error, and submits that the issues here tendered are sufficiently preserved on this record. Of course, direction of a verdict of guilty, and juridical amendment of the indictment, are always plain error. 8 I. THE DISTRICT COURT AMENDED THE INDICT- MENT AND DIRECTED A VERDICT OF GUILT ON THE ENTERPRISE ELEMENT. THE COURT OF APPEALS’ OPINION UPHOLDS THIS PROCEDURE Turkette holds: “The existence of an enterprise at all times remains a separate element which must be proved by the Government.” 452 U.S. at 583 [footnote omitted. ] Consistent with Russell v. United States, 369 U.S. 749 (1962), this element of the offense must be pleaded with specificity.‘ Stirone v. United States, 361 U.S. 212 (1960) and Dunn v. United States, 442 U.S. 100 (1979), confirm that the government may not charge one crime and ride to. judgment by proving another. Finally, each element of the offense must be the subject of proper jury instruction so as to avoid a judicial directed verdict. United Brother- hood of Carpenters & Joiners v. United States, 330 U.S. 395, 408-09 (1947); Connecticut v. Johnson, 103 S.Ct. 969 (1983). The treatment of the enterprise element in this case violated each of these principles. The indictment charged that “Cauble Enterprises” was the enterprise, yet failed to plead a theory of liability or enumerate the alleged role of each asset listed in the Notice which was attached to the indictment. See Appendix B. At trial, proof of the enterprise element coalesced with that of the “pattern of racketeering activity” conducted by the “Cowboy Mafia,” 706 F.2d at 1329 n.1; 2an.1, who had been the subject of earlier prosecutions, thus establishing a wholly illegitimate enterprise-in-fact dif- ferent from the enterprise charged. The trial court’s in- structions to the jury were critically flawed by failure to instruct “enterprise” as a separate element of the offense ‘When forfeiture is sought, the requirements of F.R.Crim.P. 7(c(2) myst also be met. 9 which had to be proved beyond a reasonable doubt. The trial court simply stated that Cauble Enterprises was charged as the enterprise. This functioned as a directed verdict on the enterprise element, and permitted the government to vary its proof from its pleading. The trial court’s action in effect amended the indictment by paper- ing over any issue of whether the government had proved the charges it had made.’ The critical mistake of the court of appeals’ opinion in scrutinizing the jury instructions was its finding that a directed verdict would only have been accomplished if the trial judge told the jurors “that Cauble enterprises was the RICO enterprise.” [Footnote omitted.] 706 F.2d at 1343; 32a. This is not the lesson of Carpenters & Joiners and its progeny. A directed verdict is accomplished if the trial court’s instructions preclude jury consideration of an element of the offense as was done here. Since Turkette has underscored the critical importance of the enterprise element, the court of appeals’ analysis poses serious dangers to the proper administration of RICO. More than harmony to the teaching of Carpenters & Joiners and Dunn is at stake here, though the princi- ples upon which those cases rest would amply justify issuing the writ: If the government is permitted to play fast and loose with the enterprise element, and then to have its shifting theories ratified by the trial court, the accused, as happened in those cases, is convicted without due process. The enterprise element, once vested with chameleon qualities, changes hue as necessary to permit forfeiture of as many of the the accused’s assets—indeed 5 The variance/directed verdict point is preserved by timely Rule 29 motions and by the plain error doctrine. 10 his entire estate, as here—as can be fit into the govern- ment’s constantly shifting definition.’ II. THE IN PERSONAM FORFEITURE IN THIS CASE IS AT WAR WITH THE STATUTE AND VIOLATES DUE PROCESS OF LAW A. The Unprecedented Forfeiture In This Case Is Worthy Of Review’ Prior to the American Revolution, a well-established common law rule provided that conviction of felony for- feited the defendant’s personalty to the Crown and esche- ated all realty to his lord; the convicted traitor forfeited both to the Crown." In 1787, the framers of the United States Constitution banned imposition of forfeiture of estate and corruption of blood upon conviction of treason,’ * The Court’s ultimate view of the facts is irrelevant to the proper resolution for the question we present, and to evaluation of its im- portance. It is either proper to direct a verdict of guilty or it is not; the trial judge either did that or did not. The record fairly presents the “shifting enterprise theory” question on any view of the facts. 7 The forfeiture issue may be guided to some limited extent by this Court’s decision in United States v. Martino, 681 F.2d 952 (5th Cir. 1982) (en banc), rev’g, 648 F.2d 367 (1981), cert. granted sub nom. Russello v. United States, 103 S.Ct. 721 (1983), because if the profits from a pattern of racketeering activity are not forfeitable, then they should not carry with them such a taint that they forfeit defendant’s estate when they are placed in the mainstream of his or her legitimate business activities. But, Martino was properly pieaded and proved as a wholly illegitimate enterprise-in-fact, and thus is not likely to address the issués raised by forfeiture of assets legitimately acquired preindictment, as here. 53 W. Holdsworth, History of English Law 68-77 (2d Ed. 1927); 1 F. Pollock and F. Maitland, History of English Law 351 (2d ed. 1909). °“The Congress shall have power to declare the Punishment of Treason but no Attainder of Treason shall work Corruption of a Blood ll and three years later the first Congress abolished forfeit- ure of estate for all convictions and judgments.” The constitutional backdrop has led to the common judicial observation that forfeitures are not favored. See, e.g., United States v. One 1936 Model Ford V8, 307 U.S. 219 (1939); Farmers’ & M. Nat. Bank v. Dearing, 91 U.S. 29 (1875). Until the enactment of RICO, in personam forfeiture was Virtually unknown in American jurisprudence. Most forfeiture statutes provide for a proceeding in rem, in which if the government prevails, the interests of all claimants are settled: See generally Colero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). In such proceedings, the claimant almost always has the right toa jury trial, Vance v. United States, 676 F.2d 183 (5th Cir. 1982); United States v. One 1976 Mercedes Benz, 618 F.2d 453 (7th Cir. 1980). No item of property may be forfeited without proof that it was involved in some unlawful transaction, King v. United States, 364 F.2d 235 (5th Cir. 1966) (Tuttle, C.J.). The common law history, as reflected in American constitutional and statutory tradition, is re- viewed ably in United States v. One 1976 Mercedes Benz, supra. This Court’s opinions have generally distinguished the disfavored remedy of in personam forfeiture from in rem proceedings where “the thingis. . . primarily considered the offender,” The Palmyra, 25 U.S. (12 Wheat.) 1, 14 or Forfeiture except during the life of the person attained.” U.S. . Const. Art. III, Sec. 3, See generally Wallach v. Van Riswick, 92 U.S. 202 (1876). 0 “Provided always, and be it enacted, That no conviction or judg- ment for any of the offenses aforesaid, shall work corruption of blood, or any forfeiture of estate.” Act of April 30, 1790, Sec. 24, 1 Stat. 112 (1790), revised and codified to 18 U.S.C. § 3563 (1976). 12 (1827), notwithstanding the established innocence of the owner of the res. Harmony v. United States, 43 U.S. (2 How.) 210 (1844). All the challenges to the historical rationale for in rem forfeitures aside, they at least estab- lish the limit of an owner’s liability. See O. Holmes, “The Common Law” 27 (1881). By contrast, “what is innovative about RICO is not that it imposes forfeiture as a consequence of criminal activity, but rather that it imposes it directly on an individual as part of criminal prosecution rather than in. a separate proceeding in rem against the property.” United States v. Huber, 603 F.2d 387, 396 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980). See also United States v. Grande, 620 F.2d 1026, 1038 n.5 (4th Cir.), cert. denied, 449 U.S. 830 (1980), discussing the written views of then-Deputy Attorney General Kleindienst which constitute almost the entire legislative history of the RICO forfeiture pro- visions. In Grande, however, the court followed Huber and declined to agree with Mr. Kleindienst that RICO revives common law “forfeiture of estate,” or amends 18 U.S.C. § 3563. American law has never disinherited, and RICO ought not now to “disinherit men because they were kindred to felons.” 620 F.2d at 1038. The interest sought must, of course, be set out in the indictment, F.R.Crim.P. 7(c)(2), and the proof must sustain the con- nection of each interest sought to be forfeited to the proven RICO enterprise, which must in turn be the same “enterprise” alleged in the indictment. Nor does the RICO forfeiture reach so far as the in personam forfeit- ure provisions of the “continuing criminal enterprise” statute, 21 U.S.C. § 848(d). See United States v. Long, 654 F.2d 911, 915 n.6 (3d Cir. 1981). Because RICO forfeitures are punitive, and incident to a criminal prosecution, the principle of lenity of course 13 applies. Williams v. United States, 458 U.S. 279 (1982); Dunn v. United States, 442 U.S. 100 (1979). We can in this petition only suggest the depth of con- stitutional concern raised by a forfeiture of virtually a!! of petitioner’s estate. The court of appeals reached this result by shearing forfsicure of intelligible constitutional limits, and—as we noted above—by permitting the government's definition of enterprise to change at will. The court first noted that since this is not an in rem forfeiture, the proof need not connect any particular item of forfeited property, even if it should consist of thou- sands of shares of stock in a public company, to culpability in the manner required for forfeiture of a boat, a car, ora rifle. The court also declined, as noted above, to find error in the district judge’s cavalier treatment of the enterprise element of the offense. It then found sufficient the allega- tions of the Notice of Holdings Subject to Forfeiture. Finally, building upon this series of arguments, the court held that the jury was not required to specify which assets and entities of Cauble Enterprises were subject to forfeiture—all of them were. It reached this result by noting that, after all, the indictment alleged that Cauble Enterprises was the “enterprise,” forgetting again that allegations and proof can, and in this case at least arguab- ly did, diverge considerably. Thus was one set of procedural protections against unwarranted forfeiture shorn away by mechanistic in- vocation of the in rem/in personam distinction, and another set shorn away by ignoring salutary limits upon RICO itself and prosecutorial misconduct. Petitioner, through the adventitious choice of a means of conducting his many business activities, lost everything, including 14 assets acquired long before any alleged connection with wrongdoing and assets having no colorable connection with the charges against him." There must be some limits here. This is the case to set them. RICO mandates forfeiture, but not a dispropor- tionate one. In United States v. Huber, supra, the Second Circuit cautioned against too exuberant an application of RICO forfeiture provisions, and approved a special ver- dict procedure designed to make sure that entities were not included in the “enterprise” and forfeited merely because the defendant owned them. 603 F.2d at 394-95. United States v. Zang, 703 F.2d 1186 (10th Cir. 1982), suggests that forfeiture reaches only “tainted interests” in an enterprise, and not all its assets. After all, § 1963(a) does not automatically require for- feiture of all interest in an “enterprise” found to have existed and to have satisfied the RICO criteria. Rather, the defendant must forfeit any “interest” acquired and maintained in violation of § 1962, and any “interest” affording a source of influence over the enterprise. View- ing this language narrowly not only heeds the principle of lenity, See Williams v. United States, supra; Dunn v. United States, supra, but pretermits consideration of the serious constitutional problems that would attend a for- feiture all out of proportion to a defendant’s guilt. The jury, properly charged, might have identified particular '' The court of appeals declared itself and the district court power- less to do anything about this state of affairs, citing its prior opinion in L’Hoste, supra. 706 F.2d at 1346-47; 39a. "Given the passage of the Bill of Rights by the same body of lawmakers and citizenry that produced the antiforfeiture statute, 18 U.S.C. § 3563, one may conclude that the forfeiture of a person’s 15 properties that it fourd to be both part of the enterprise and the basis for the defendant’s control.” The trial court’s fundamentally uninformative charge left the jury with no basis to do anything other than render a blanket forfeiture verdict. To say that a conviction of crime should entail forfeiture of a person’s entire wealth harks back to a common law tradition that fortunately found no welcome on our shores. To say so based on the verdict of ajury that had no guidance and no limits—though they be precious few—on this far-reaching statute is particularly odious and begs review. Rex Cauble has been deprived of his wealth simply because he has it, not because it was accumulated through crime. This Court analyzed the overall purpose of RICO in Turkette, and found “[T]he aim is to divest the association of the fruits of its ill-gotten gains.” 452 U.S. at 585. Congress must have intended that in personam for- feiture under RICO be so limited because it failed to abrogate 18 U.S.C. § 3563. B. This Court Should Provide Guidance To Trial Judges As To The Nexus Which Must Be Pleaded And Proved Between The Criminal Enterprise, The Racketeering Activity And Forfeited Assets The root of most evils in the court of appeals’ opinion is that court’s failure to propound and apply a consistent test limiting application of RICO to conduct connected to estate is a per se violation of the eighth amendment. This Court has recently reaffirmed that a punishment may be unconstitutional if its harshness is disproportionate to the gravity of the offense. Solem v. Helm, 103 S.Ct. 3001 (1983). '8Of what use are the special verdict provisions of F.R.Crim.P. 32(b)(2) and the forfeiture allegation requirements of F.R.Crim.P. 7(c)(2) if the extent of forfeiture is so predetermined that the jury’s function is reduced to that of a rubber stamp? 16 the enterprise and to the assets sought to be forfeited. The test adopted by the court seems at first reading a modest proposal, but we have seen how, when applied to both the guiit and forfeiture phases of a RICO trial, it palters in a double sense. Section 1962(a) prohibits the use or investment of in- come derived from a pattern of racketeering activities in the operation” of an enterprise and section 1962(c) pro- hibits conduct of the affairs of the enterprise “through” a pattern of racketeering activities. The relationship be- tween the income derived from the predicate acts, the defendant’s commission of the predicate acts and the conduct of the affairs of the enterprise are critical ele- ments in proving enterprise-based liability. Turkette establishes that the “enterprise” and the “racketeering activity” must be “connected.” 452 U.S. at 583. This Court has never fashioned a test to determine if such a relationship exists." The court of appeals formu- lated the following: ‘ The charges here were necessarily limited to operation of Cauble Enterprises. Mr. Cauble had acquired his interest in and established Cauble Enterprises long before the alleged pattern of racketeering activities. ‘5 Many courts have grappled with this nexus problem and have generally agreed that the government must prove a relationship between the predicate acts, the defendant’s conduct, and the affairs of the enterprise. More than mere association or knowledge is re- quired. See United States v. Phillips, 664 F.2d 971, 1011-1012 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982) (each predicate act must be related to and intended to further enterprise affairs); United States v. Nerone, 563 F.2d 836 (7th Cir. 1977), cert. denied, 435 U.S. 951 (1978); United States v. Dennis, 458 F. Supp. 197, 199 (E.D. Mo. 1978) (nexus between defendant and enterprise is insufficient if no relationship between alleged activities and conduct of enterprise). There is a dispute, however, in the courts of appeals regarding the 17 A defendant does not ‘conduct’ or ‘participate in the conduct’ of a lawful enterprise’s affairs, unless [1] the defendant has in fact committed the racketeering acts as alleged; and [2] the defendant’s position in the enterprise facilitated his commission of the racketeering acts, and [3] the predicate acts had some effect on the lawful enterprise. 706 F.2d at 1332-33; 10a. The court of appeals then found that “the deposit of money into the enterprise’s bank account” established sufficient evidence of a direct effect under the third prong of the test. 706 F.2d at i341 n.62; 10a n.24. The govern- ment’s proof at trial established little more than cash deposits into one of Cauble Enterprises’ many checking accounts. These deposits were not linked to proceeds of any identified illegal iriportation. This Court has recognized the dangers in findings of criminal liability on the basis of cash income absent a showing by the government of the unavailability of any legitimate source for such income. See Holland v. United States, 348 U.S. 121 (1954). The court of appeals reliance on the cash deposits strained its nexus test to the breaking point. The ex- istence of cash deposits was the basis for a finding of investment of illegally derived income. This same invest- ment was then used as the basis for a finding of both conduct of the enterprise’s affairs “through” a pattern of racketeering activity and nexus between the illegal acts and individual assets to justify forfeiture. degree of relatedness that must be shown. See United States v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1982); United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979), cert. denied, 445 U.S. 961 (1980); Tarlow, RICO Revisited, 17 Ga.L.Rev. 291, 371-376 (1983). ¥ i 18 Mr. Cauble proved at trial a legitimate source, cattle sales, and a legal, though to some an opprobrious source, gambling, for the bulk of the cash income. The existence of cash deposits over a two-year period in a multimillion dollar business such as Cauble Enterprises cannot sup- port a finding of nexus or derivation from an illegal source. Turning to the forfeiture issue, neither the indictment nor the proof at trial established any relationship be- tween the diverse assets of Cauble Enterprises and the criminality which underlay the RICO charges. III. THIS COURT SHOULD DECIDE WHAT, IF ANY, DIS- CRETION A DISTRICT COURT JUDGE HAS UNDER 18 U.S.C. § 1963(a) WHEN AN IN PERSONAM FOR- FEITURE ORDER IS FINALLY LEVIED AGAINST PROPERTY IN WHICH THIRD PARTIES HAVE AN UNDIVIDED INTEREST. THE COURTS OF APPEALS ARE IN DISARRAY ON THE ISSUE The court of appeals found that the limited partners of Cauble Enterprises had no right to notice or a judicial hearing concerning their undivided vested property in- terest, a holding thought compelied by United States v. L’Hoste, 609 F.2d 796 (5th Cir.), reh. den., 615 F.2d 383, cert. denied, 449 U.S. 833 (1980)."° They had neither the right to participate in the trial proceedings, nor any right to notice or hearing prior to the entry ofa forfeiture order ‘6 Beside L’Hoste, the court of appeals relied on a student com- ment, RICO Forfeitures and the Rights of Innocent Third Parties, i8 Cal. W.L. Rev. 345 (1982). 706 F.2d at 1346 n.89; 37a n.89. This article not only contains a gross mischaracterization of the L’Hoste opinion as holding that Congress implicitly repealed the statutory prohibi- tion of forfeiture of estate in passing the RICO statute, id. at 351 and n.84, but is riddled with tendentious remark and speculation. Jd. at 358. 19 purporting to remove a general partner and install the government in his place as holder of an undivided interest in all of Cauble Enterprises’ assets. The court of appeals decided that the limited partners need not be provided a judicial forum at any time and are relegated to the filing of an unreviewable petition to the Attorney General of the United States for a remission or mitigation of the forfeiture." It is unlikely that the Attor- ney General’s exercise of discretion is reviewable.” The Department of Justice has recently changed its policy regarding such petitions and now recognizes that third party claimants: [A]sserting a legal interest in forfeited property that cannot be co-extensive with the order of forfeiture— are entitled to a judicial resolution of their claims, and that it is improper and arguably even unconstitu- tional for the remission and mitigation process, which has traditionally been viewed as solely a mat- ter of executive discretion, to be used as a forum for resolution of their asserted interests.” The court of appeals approach to 18 U.S.C. § 1963(c) is also contrary to that dictated in Johnson v. Robison, 415 ‘7 The regulations which define this procedure provide little guid- ance and no assurance of due process. 28 C.F.R. §§ 9.1-9.7 (1982). 8 See United States v. One 1970 Buick Ser. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.), (on suggestion for hearing en banc), cert. denied, 409 U.S. 980 (1972). Cf., United States v. One Tintoretto Painting, 691 F.2d 603, 609 (2d Cir. 1982) (failure to exhaust adminis- trative remedies for remission does not deprive in rem claimant of standing to file action for return of seized property in federal court.) '* Hearings concerning H.R. 3299, The Comprehensive Drug Penalty Act of 1983 Before the Subcommittee on Crime of the House Committee on the Judiciary, 98th Cong., 1st Sess. 16 (1983) (State- ment of James I.K. Knapp, Deputy Assistant Attorney General, Criminal Division). 20 U.S. 361, 373-4 (1974) (statute cannot be construed to restrict access to judicial review in absence of clear and convincing evidence of congressional intent to prevent such review). A claimant should at least be allowed those judicial challenges afforded by, e.g., Colero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). An exercise of discretion by the Attorney General can- not be a substitute for due process rights. The protections of the Administrative Procedure Act, 5 U.S.C. § 551, et: seq. are not apparent in the skeletal regulations on mitigation and remission. We ask that the procedural fairness of this suggested procedure be examined by this Court in light of the teachings of Fuentes v. Shevin, 407 U.S. 67, 80-83 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 339-42 (1969); Mullane v. Central Hanover Bank & Trust Co., 389 U.S. 306, 314 (1950); and, Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see also United States v. Spilotro, 680 F.2d 612, 617 (9th Cir. 1982) (applying Fuentes to RICO forfeitures). Since L‘Hoste the United States Court of Appeals for the Tenth Circuit has squarely held that a district court has power under 18 U.S.C. § 1963(c) to establish the terms and conditions of forfeiture and to protect the interests of innocent third parties. United States v. Zang, 703 F.2d 1186, 1197 (1982). Accord, Boffa v. United States, 688 F.2d 919, 939 (3d Cir. 1982), cert. denied, 103 S.Ct. 1272 (1983). See also United States v. Huber, su- pra. Thus, the Fifth Circuit stands alone in holding that district court has no discretion under § 1963(c). Finally, the most compelling reason for review of the forfeiture is this Court’s decision in United States v. Rodgers, 103 S.Ct. 2132 (1983), decided t!e same day as this case below. In marked contrast to the judicial defer- ence to nonliable third party interests suggested in Rod- 21 gers, the court of appeal here rejected the suggestion that procedural fairness must attach to the process whereby undivided property interests are divided, holding that the suggestion “would make the validity of federal RICO forfeitures subject to the nuances of state property law.” 706 F.2d at 1347, 39a. We respectfully submit that the message of Rodgers is that the nuances of state property law must be considered by a trial court in the exercise of its equitable discretion upon the entry of a forfeiture order. IV. THE COURT OF APPEALS REJECTED PRECEDENT FROM THIS COURT IN UPHOLDING PETITIONER’S CONVICTION FOR MISAPPLICATION OF BANK FUNDS Cauble was convicted of four counts of misapplication, 18 U.S.C. § 656, in connection with four loans made to Charles “Muscles” Foster by the Western State Bank and the South Main Bank. 18 U.S.C. § 656 punishes one who “embezzles, ab- stracts, purloins or willfully misapplies” the funds of a federally-insured bank. See 706 F.2d at 1352-56, 50a-58a, for the court of appeals’ discussion of this issue. Embezzlement and purloining—stealing—pose few conceptual difficulties in this context. Misapplication—a type of conversion that may, as here, allegedly occur when the bank does routine transactions such as loaning money, has posed significant problems of interpretation. Banks are in the business of loaning money. Thus, the boundary between criminal and noncriminal conduct is the same as that between the bank’s lawful duty and 22 misapplication.” The banks loaned money to Foster on four occasions. The loans were all paid back. The alleged crime arises because Cauble allegedly induced the bank to make the loans knowing that Foster was a “high risk” borrower. In this area, this Court has been careful to stress that the distinction between maladministration and misapplication must be carefully preserved, for misapplication has no settled technical meaning. United States v. Britton, 107 U.S. 655, 669 (1883). In another opinion respecting the same Mr. Britton, this Court heaped scorn upon the idea that a loan action concurred in by the board of directors of a bank could occasion criminal liability for an officer who was also on the board. United States v. Britton, 108 U.S. 193, 197 (1883). Yet the court of appeals, conceding that Britton “may be construed as recognizing a consent defense,” affirmed petitioner’s conviction under § 656. It did so in full retreat from some of its own prior cases, e.g., United States v. Mann, 517 F.2d 259, 268 (5th Cir. 1975), cert. denied, 423 U.S. 1087 (1976). See also United States v. Robinson, 30 F.2d 25, 27 (6th Cir. 1929).” ” The court of appeals also upheld the sufficiency of the indictment, even though it did not allege a transaction amounting to misapplica- tion, nor the name of the borrower whose unreliability was allegedly the crucial issue. Surely this falls afoul of the cases cited in text, as well as of Russell v. United States, 369 U.S. 749 (1962). “ The court of appeals recognized how crucial intent was to the jury’s determination, and said that if trial counsel had asked for an instruction that consent should be considered by the jury, the trial judge should have given it. 709 F.2d at n.137, 57a n.137. 23 CONCLUSION For all of the above reasons, it is respectfully prayed that the writ of certiorari be granted. : Respectfully submitted, MICHAEL E. TIGAR (Counsel of Record) SAMUEL J. BUFFONE JOHN J. PRIVITERA TIGAR & BUFFONE, A Professional Corporation 1302 18th Street, N.W. Washington, D.C. 20036 (202) 785-8900 MELVIN CARSON BRUDER BRUDER AND COOPER 2514 Cedar Springs Dallas, Texas 75201 (214) 742-3224 Attorneys for Petitioner Dated: October 10, 1983 a = Ei a < la APPENDIX A UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. MAY 31, 1983 No. 82-2087 UNITED STATES OF AMERICA, Plaintiff-Appellee, if Rex C. CAuBLE, Individually and doing business as Cauble Enterprises, Defendant-Appellant. Defendant was convicted in the United States District Court for the Eastern District of Texas, William M. Steger, J., of substantive violations of Racketeer Influenced and Corrupt Organizations Act, conspiracy to violate RICO, three viola- tions of Travel Act, and four counts of misapplication of bank funds, and he appealed. The Court of Appeals, Alvin B. Rubin, Circuit Judge, held that: (1) evidence was sufficient to support defendant’s convictions under Racketeer Influenced and Cor- rupt Organizations Act; (2) defendant’s general partnership interest in business was subject to forfeiture under RICO; (3) evidence supported defendant’s convictions under Travel Act; and (4) evidence supported defendant’s convictions for misapplication of bank funds. Affirmed. Appeal from the United States District Court for the East- ern District of Texas. Before WispoM, RuBIN.and Tare, Circuit Judges. ALVIN B. Rustin, Circuit Judge: Rex C. Caubie appeals his conviction on a ten-count indict- ment charging him with violating the Racketeer Influenced 2a and Corrupt Organizations statute (RICO) and the Travel Act and with miasapplication of bank funds. Cauble, a wealthy Texas businessman, was in effect accused of being the range boss of the highly publicized “Cowboy Mafia,” a loosely-knit group responsible for importing and distributing over 147,000 pounds of marijuana from 1976 through 1978.' The indictment charged Cauble with substantive violations of RICO* based on conduct of an enterprise through a pattern of racketeering activity and investment of income from racketeering activity in ' The “Cowboy Mafia” included a number of Cauble Enterprises’ employees and others. Its composition and exploits are chronicled in several or our earlier opinions. See United States v. Ruppel, 666 F.2d 261 (5th Cir.), cert. denied, _ U.S. —_, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982); United States v. Hamm, 659 F.2d 624 (5th Cir.1981) (en banc); United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981) * (a) It shali be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racket- eering 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, direct] or indirectly, any part of such income, or the proceeds of suc 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 con- trol 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 accomplices in any pattern or [sic] racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding secur- ities 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. (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 activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associ- ated with any enterpise engaged in, or the activities of which 3a an interstate enterprise; conspiracy to violate RICO; three violations of the Travel Act,’ and four counts of misapplication of bank funds.‘ The jury convicted him on all counts and found that Cauble’s share of Cauble Enterprises should be forfeited. eect. interstate or foreign commerce, to conduct or participate, ly or indirectly, in the conduct of such enterprise’s affairs aa a pattern of racketeering activity or collection of unlaw- ebt. (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. 18 U.S.C. § 1962 (1976). * (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facili- tate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to a any of the acts specified in pi na (1), (2), and (3), shall be fined not 0 than $10,000 or imprisoned for nut more than five years, or th. (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or controlled substances (as defined in section 102(6) of the Controlled Sub- stances Act) or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States. (c) Investigations of violations under this section involving a ow shall be conducted under the supervision of the Secretary of the Treasury. 18 U.S.C. § 1952 (1976). * Whoever, being an officer, director, agent or employee of, or connected in any Sa gem with any Federal Reserve bank, mem- ber bank, natio beak or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, a or employee of a Federal Reserve Agent or of the of Governors of the Federal 4a The trial judge imposed a five-year sentence on Count One and concurrent five-year sentences on the other counts and ordered the forfeiture. Cauble’s appeal raises myriad chal- lenges to the indictment, the sufficiency of the evidence adduced at trial, and the legality of the forfeiture. Having reviewed the sixteen-volume record, we conclude that the trial was fair, the evidence was sufficient, and the assertions of error are without merit. We, therefore, affirm the judgment of conviction and forfeiture. I. THE RICO CLAIMS A. Background Congress adopted the Racketeer Influenced and Corrupt Organizations provisions’ “to provide a blueprint for federal action against organized crime. .. .”” Although it suffered Reserve System, embezzles, abstracts, purloins or willfully mis- applies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted [sic] to the sgn or care of any such bank, or to the custody or care of any suc agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or oy gg does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. As used in this section, the term “national bank” is synonymous with “national banking association”; “member bank” means and includes any national bank, state bank, or bank and trust com- which has become a member of one of the Federal Reserve ; and “insured bank” includes any bank, banking associa- tion, trust company, savings bank, or other satan 6 institution, the deposits of which are insured by the Federal Deposit In- surance Corporation. 18 U.S.C. § 656 (1976). 5 Organized Crime Control Act of 1970, Title IX, Pub.L. No. 91-452, 84 Stat. 922, 941 (codified at 18 U.S.C. §§ 1961-1968 (1976 & Supp. V 1981)). ® Note, Elliott v. United States: Conspiracy Law and the Judicial Pursuit of Organized Crime Through RICO, 65 Va.L.Rev. 109, 109 (1979). 5a initially from limited use, RICO is now a frequently-employed arrow in the federal prosecutor’s crime-fighting quiver. RICO’s application and effectiveness have been enhanced by the judicial consensus that it may be used even though no organized crime activity is charged’ and by the Supreme Court’s decision that it applies not only to legitimate enter- prises conducted through a pattern of racketeering activity, but to wholly illegitimate enterprises as well.” 1. What RICO Prohibits . RICO’s purpose is “the imposition of enhanced criminal penalties and new civil sanctions to provide new legal remedies for all types of criminal behavior, that is, enterprise criminality—from simple political corruption to sophisticated white-collar crime schemes to traditional Mafia-type endeavors.”” RICO does not, however, criminalize conduct that was legal before its enactment. Its application depends on the existence of racketeering activity violating some other criminal statute, state or federal." * See Tarlow, RICO: The New Darling of the Prosecutor's Nurse- ry, 49 Fordham L. Rev. 165, 175 & n. 48 (1980). This article, although generally critical of RICO, states that the courts’ conclusion that an organized crime link is not required is persuasively supported by Congress’ refusal to incorporate a definition of organized crime into RICO. See also Blakey & Gettings, Racketeer Influenced and Cor- rupt Organizations (RICO): Basic Concepts — Criminal and Civil Remedies, 53 Temp.L.Q. 1009, 1013-14 (1980) (RICO applies to all types of organized criminal! behavior); cf. Note, The Racketeer In- fluenced and Corrupt Organizations Act: An Analysis of the Con- fusion in its Application and a Proposai for Reform, 33 Vand. L. Rev. 441, 441 n. 4 (1980) (organized crime describes “the different groups of individuals who supply illegal goods and services . . . to countless numbers of citizen customers”). ® United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). * Blakey & Gettings, supra note 7, at 1013-1014. ‘. Thus Blakey and Gettings describe RICO as a “remedial” rather than a “criminal” statute. See id. at 1021 n. 71. 6a Section 1962(a) of the statute prohibits the use of illegally- derived funds to acquire or maintain an interest in an enter- prise by legal means."' Section 1962(c) proscribes the illegal use of an enterprise. Section 1962(d) makes illegal a conspiracy to violate RICO’s substantive provisions, requiring the govern- ment to prove that the defendant agreed to participate in the enterprise’s affairs through a pattern of racketeering. Each section requires that the enterprise atfect interstate com- merce. The government establishes a § 1962(a) violation by proving the existence of an enterprise, the defendant’s derivation of income fiom a pattern of racketeering activity, and the use of any part of that income in acquiring an interest in or operating the enterprise. The government establishes a § 1962(c) viola- tion by proving the existence of an enterprise, the defendant’s employment by or association with that enterprise, and the defendant’s conduct of or participation in the conduct of the enterprise’s affairs through a pattern of racketeering activity.'* Because this case requires us to examine the proof necessary to demonstrate both the existence of an enterprise and the connection of a defendant to it, we discuss each element briefly. 2. Enterprise The statute states: “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact al- though not a legal entity.”’* The Supreme Court has held that this language encompasses both wholly legal entities and '. Section 1962(b) forbids the takeover of an enterprise by the use of illegal means. Cauble was not charged under this section. '2 United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982); United States v. Phillips, 664 F.2d 971, 1011 (5th Cir. 1981), cert. denied, U.S. ——, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). 18 U.S.C. § 1961(4) (1976). 7a \ completely illegal associations-in-fact.'* But “(t]he ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from the pattern of activity in which it engages.”"® Therefore, in every case the government must prove not only that there was a pattern of racketeering activity but that it was conducted through an enterprise as thus de- fined. In this case the indictment charged that Cauble Enterprises, a legal partnership consisting of Cauble, his wife, and his son, was the enterprise used in violation of both §§ 1962(a) and (c)." 3. Pattern Of Racketeering Activity The statute defines a “pattern of racketeering activity” as “at least two acts of racketeering activity. . . the last of which occured within ten years. . . after the commission of a prior act of racketeering activity.” “Racketeering activity” includes an array of crimes that violate either state or federal law." Turkette, 452 U.S. at 592, 101 S.Ct. at 2533, 69 L.Ed.2d at 260. 8 Td. at 583, 101 S.Ct. 2528-29, 69 L.Ed.2d at 255. The court stated that an enterprise is “an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct.” /d. at 583, 101 S.Ct. at 2528, 69 L.Ed.2d at 254. . © In United States v. Stratton, 649 F.2d 1066, 1075 (5th Cir. 1981), we held that the prosecution need not specify whether the enterprise is a “legal entity” or a “group of individuals associated in fact although not a legal entity” because “there is no logical or statutory reason to force the government to choose between alternative enterprise theories as long as the indictment is otherwise sufficient.” (citation ommitted). When, however, the indictment makes clear that the government is proceeding on the theory that the enterprise is one or the other of these two kinds of enterprise, it must prove the existence of “the associational enterprise on which [it] rested its case.” United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir.1982), cert. denied, U.S. , 103 S.Ct. 739, 74 L.Ed.2d 960 (1983). 7. 18 U.S.C. § 1961(5) (1976). 8 Td. § 1961(1) (Supp. V 1981). The racketeering activity alleged in this case included “dealing in narcotic or other dangerous drugs,” id., and Travel Act violations. 8a 4. Nexus Between The Enterprise And The Racketeering Activity RICO criminalizes the conduct of an enterprise through a pattern of racketeering activity and not merely the defendant’s engaging in racketeering activity. '* Therefore, there must be a nexus between the enterprise, the defendant, and the pattern of racketeering activity. The mere fact that a defendant works for a legitimate enterprise and commits racketeering acts while on the business premises does not establish that the affairs of the enterprise have been conducted “through” a pattern of racketeering activity.” Similarly, a defendant’s mere association with a lawful enterprise whose affairs are conducted through a pattern of racketeering activity in which he is not personally engaged does not establish his guilt under RICO.” '% Phillips, 644 F.2d at 1011 (gravamen of RICO offense is conduct of an enterprise through a pattern of racketeering activity); United States v. Martino, 648 F.2d 367, 381 (5th Cir. 1981) (RICO proscribes the furthering of the enterprise, not the predicate acts), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982). 20. See, eg., United States v. Dennis, 458 F.Supp. 197 (E.D.Mo. 1978) (defendant's employment by General Motors Assem- bly Division and collection of unlawful debts on its premises failed to establish nexus), aff'd, 625 F.2d 782 (8th Cir. 1980). *!. For example, in United States v. Barber, 668 F.2d 778 (4th Cir.), cert denied, ___ U.S. —__, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982), the enterprise charged was the West Virginia Alcoholic Beverage Con- trol Commission. The defendant, a Commission official from 1969 to 1973 and Commissioner from 1973 until 1976, was convicted of manipulating the “withdrawal” and “breakage” rules to obtain free liquor for himself and others. If, however, the proof had shown that subordinate Commission employees manipulated these rules to get liquor without the defendant’s knowledge, consent, or participation, he could not have been convicted under RICO. This is because, although the Commissioner would have “conducted” the affairs of a RICO “enterprise,” he would not h» ve done so “through” a pattern of racketeering activity. 9a In several opinions we have discussed the requirement that there be a nexus between the enterprise and the racketeering activity. We have not, however, formulated a test to deter- mine whether the requisite nexus has been established by the government’s proof.~ Even in our most recent discussion of legal enterprises, United States v. Dozier, 672 F.2d 531 (5th Cir.), cert. denied, ___ U.S. —__, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982), we did not define the nexus required but concluded that “the nexus is clear” because “(oJnly [the defendant’s} position in the [enterprise] and his control over its affairs enabled him to hawk its services for personal gain.” 672 F.2d at 544. Two courts havé held that the test for determining whether the government has met the nexus requirement is whether it has proved that “(1) [the defendant] is enabled to commit the predicate offenses solely by virtue of his position in or control over the affairs of the enterprise, or (2) the predicate offenses are related to the activities of that enterprise.” This test appears to us essentially to combine the two required connec- tions under part (1) of the inquiry. Because the enterprise-racketeering nexus should be distinct from the defendant-racketeering connection, we find it necessary to = We stated in Martino that the predicate crimes must be “related to the affairs of the enterprise.” 648 F.2d at 403. In United States v. Welch, 656 F.2d 1039, 1061 (5th Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1768, 72 L.Ed.2d 173 (1982), we stated that there must be “a relation between the predicate offenses and the affairs of the enterprise.” We added: “Congress intended only to require a suffi- cent nexus between the racketeering activities and the affairs of the enterprise.” 656 F.2d 1062. See also United States v. Hartley, 678 F.2d 961, 991 (11th Cir.1982) ‘applying Martino formulation; “no difficulty in finding a sufficient nexus between the deceptive activi- ties employed by the defendants ... and the common everyday affairs of the enterprise .. . .”), cert. denied, ___ U.S. —__.,, 108 S.Ct. 815, 74 L.Ed.2d 1014 (1983). 3. United States v. Provenzano, 688 F.2d 194, 200 (3rd Cir.), cert. denied, ___ U.S. ___.,, 108 S.Ct. 492, 74 L. Ed.2d 634 (1982); United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980), cert. denied, 452 U.S. 10a modify this formulation. A defendant does not “conduct” or “participate in the conduct” of a lawful enterprise’s affairs, unless (1) the defendant has in fact committed the racketeering acts as alleged; (2) the defendant’s position in the enterprise facilitated his commission of the racketeering acts, and (3) the predicate acts had some effect on the lawful enterprise.” B. Challenges To The Indictment Cauble challenges each RICO count on the ground that it fails to state an offense against the United States.” Count One 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981). The Scotto Court held it unnecessary to show that the defendarit enhanced or solidified his position in the enterprise through commission of the predicate viola- tions. 641 F.2d at 54. That question is not raised by this case and we need not address it. * The effect may be direct, such as the deposit of money in the enterprise’s bank account, or indirect, such as the retention of the enterprise's existing clients. The government need not prove that the racketeering activity “benefitted” or “advanced the affiars of” the enterprise. See Hartley, 678 F.2d at 990-91; Welch, 656 F.2d at 1062; cf. United States v. Webster, 669 F.2d 185, 187 (4th Cir.) (modifying earlier opinion holding that enterprise’s affairs must bé benefitted), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L. Ed.2d 455 (1982). Nor must the government demonstrate that the enterprise itself was corrupt or that it authorized the defendant’s conduct. The prosecu- tion need prove only that the racketeering acts affected the enter- prise in some fashion. Of course, if the defendant exercised such control over the legal enterprise as to make his acts the acts of the enterprise, proof of the defendant's commission of racketeering acts satisfies both nexuses. In that event the defendant’s connection with the racketeering acts is also the enterprise’s connection. This is “conduct” of a legal enter- prise through a pattern of racketeering activity. Cf, Martino, 648 F.2d at 382 (“conducts” simply means performance of activities nec- essary or helpful to operation of enterprise). * Although this claim was not raised in the district court, we consider it on appeal because a challenge to the indictment’s sufficien- cy may be raised at any time. United States v. Meacham, 626 F.2d lla of Cauble’s indictment, the conspiracy charge, details the pre- dicate offenses and overt acts with great specificity. It alleges that as part of the conspiracy Cauble Enterprises’ “lands, buildings, automobiles, aircrafts [sic], employees and assets” would be used. It then lists thirty-seven overt acts, alleging that Cauble and Cauble Enterprises loaned money to, financed travel by, and provided ranches and an airplane for use by the conspirators. Cauble nonetheless contends that this count is defective because its charging portion does not include refer- ences to the particular means by which Cauble Enterprises’ » affairs were conducted through a pattern of racketeering activ- ity. He also contends that the allegation that he acted “in- dividually and-doing business as Cauble Enterprises” “leaves a question whether some agency theory more arcane than con- templated by 18 U.S.C. § 2 is being invoked.” Finally, he charges that the count is too vague to permit a clear answer. The indictment’s purpose is to inform the accused of the charges; it must be read in the light of that purpose. An 503 (5th Cir. 1980); see Fed. R.Crim.P. 12(b)(2). When the question is not raised below, however, we construe the indictment liberally and will not reverse unless it cannot within reason be construed to charge crime. United States v. Hart, 640 F.2d 856, 857-58 (6th Cir.), cert. denied, 451 U.S. 992, 101 S.Ct. 2334, 68 L.Ed.2d 853 (1981). %. 18 U.S.C. § 2 (1976) deals with liability of principals. The indict- ment charges Cauble individually and doing business as Cauble En- terprises. It charges that Cauble Enterprises was a limited part- nership in which Rex C. Cauble was general partner. The indictment does not charge Cauble Enterprises with any corrupt or criminal conduct. Hence the designation of Cauble “doing business as Cauble Enterprises” further identifies the individual and particularizes the charge by showing in what guise he engaged in the conspiracy. See United States v. Zitomer, 251 F.Supp. 357, 359 (D.Conn. 1966) (and cases cited therein). We see neither error nor arcane agency principle in this form of indictment. See United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974) (civil injunction), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975). 12a indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant what charge he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense. Stratton, 649 F.2d at 1073. In Stratton, the defendant argued that the indictment was defective because it alleged too broad an enterprise. We stated: “The agreements which were part of the alleged con- spiracy, the ‘overt acts’ in furtherance of the conspiracy, and the substantive racketeering offenses are all related in great detail.” Jd. We, therefore, concluded that the indictment left _no room for doubt about the charges lodged against each de- fendant and protected them from double jeopardy. Count One of this indictment, whose detail we have already summarized, is sufficient to inform Caubie of the charges against him and to permit him to answer these charges. Furth- ermore, the list of overt acts adequately specifies the means by which Cauble Enterprises’ affairs were conducted through a pattern of racketeering activity. Count Two, brought under § 1962(a), charges Cauble with aiding and abetting six incidents of marijuana smuggling and with committing or aiding and abetting various acts of travel as part of a pattern of racketeering activity. It charges that Cauble received income from these activities and invested it in Cauble Enterprises. Cauble claims that this count fails to state an offense because it can be read consistently with innocence and fails to give notice of the amount of racketeering income invested in the enterprise and the nature of its investment. The indictment charges Cauble with investing income de- rived from racketeering activity in an interstate enterprise. It lists the acts alleged as the pattern of racketeering activity. These are the essential elements of the offense charged. Cauble nevertheless cuntends that the indictment did not put him on notice of the “source, amount, and nature of the ‘income’. . . and the destination, amount and nature of the a 13a ‘investment’. . . .” But the substantive offense charged is the “investment” of “income” in an enterprise and the indictment’s wording makes clear that this is the charge against which Cauble must defend. The defendant is entitled to a “plain, concise statement of the essential facts constituting the offenses charged,” but the indictment need not set forth every evidentiary detail necessary to establish the elements of the offense.” Count Three, brought under § 1962(c), charges Cauble with conducting the affairs of Cauble Enterprises through a pattern of racketeering activity and incorporates by reference the allegations in Count Two that Cauble aided and abetted smuggling and acts of criminal travel. It thus puts Cauble on notice first that he is charged with conducting Cauble Enter- prises’ affairs through a pattern of racketeering and second that the acts of racketeering are those set forth in Count Two. Cauble argues that this count is vague because it fails to explain how its allegations are related to the holdings of Cauble Enterprises sought to be forfeited. The indictment is clear to all but the captious. It plainly and concisely states the charge and that suffices.” Cauble contends that Count Two, charging investment in the enterprise, and Count Three, charging conduct of the 7. United States v. Williams, 679 F.2d 504, 508 (5th Cir.1982) (emphasis added), cert. denied, _. U.S. — _, 103 S.Ct. 742, 74 L.Ed.2d 963 (1983). =. Williams, 679 F.2d at 508; see 1 L. Orfield, Criminal Procedure Under the Federal Rules § 7.53 (1966). *. Cauble also claims that there was a fatal variance between the indictment and the proof of the “enterprise.” We consider that con- tention infra in our discussion of evidentiary sufficiency, for our rule is that the issue of variance is waived if not presented to the district court. See United States v. Lerma, 657 F .2d 786 (5th Cir. 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982); Fed.R. Crim.P. 12(b)(2). lda enterprise, are multiplicitous.” Rule 12(b)(2) requires that defenses and objections based on defects in the indictment be raised before trial. In United States v. Bradsby, 628 F.2d 901, 905-06 (5th Cir. 1980), we held that a failure to raise the multiplicity argument before trial did not waive the right to object to multiple sentences. We reasoned that the defendant should not be forced to serve an erroneous sentence imposed on each count of a multiplicitous indictment because of waiver. In this case, however, Cauble received a concurrent sent- ence on the allegedly multiplicitous counts. Therefore, this claim is arguably waived. Even if not waived, this contention lacks merit. To sustain a conviction on Count Two the goverment must prove that the defendant derived and invested income. To convict on Count Three the government must satisfy the three-pronged test we have set out above.” These are plainly different offenses, requiring proof of different elements, so the counts are not multiplicitous.* C. The Evidence” The government’s proof focused on a series of smuggling episodes involving the shrimp boats MONKEY, JUBILEE, BAYOU BLUES, and AGNES PAULINE and their connec- *®. Multiplicity is charging a single offense in more than one count. United States v. DeLaTorre, 634 F.2d 792, 794 (5th Cir.1981). 3. See supra text accompanying note 24. ® See generally Phillips, 664 F.2d at 1014; Martino, 648 F.2d at 382-83. In both of those cases we rejected the contention that counts charging “conducting” and “conspiriity to conduct” were multiplici- tous despite “considerable overlap in the evidence . . . .” Martino, 648 F.2d at 383: These counts, by contrast, overlap only in that the government must prove the existence of an enterprise affecting interstate commerce. ®. In reviewing a jury verdict of guilty, we view the evidence and all reasonable inferences from the evidence in the light most favor- able to the government. Glasser v. United States, 315 U.S. 60, 62 l5a tion to Cauble’s trusted ranch foreman, Charles “Muscles” Foster.” The issue, as both trial counsel repeatedly stressed to the jury, was whether Cauble knew of the smuggling activi- ties; no one contested that the smugglers used many of Cauble Enterprises’ assets. Much of the government’s evidence came from the mouths of “Cowboy Mafia” members and former Cauble Enterprises employees. 1. Jaruary-February !977: The Preliminaries Raymond Hawkins, a confessed drug smuggler, met Foster in 1972 and the two became reacquaintec in 1976.” Foster flew by commercial airl:ner to Thomasville, Georgia, near Hawkins’ home, on February 1, 1977; Caub!e Enterprises paid for the ticket. When Cauble made a $25,000 loan to Foster from Cau- ble Enterprises funds on February 9, 1977, Foster told Cauble that the money was to be reloaned to Hawkins. Hawkins flew to New Jersey the next day to lease trucks to haul marijuana. Caubie Enterprises paid for the ticket and Hawkins used all or part of the $25,000 to pay for the trucks.” Foster helped unload marijuana from the MONKEY on or about February 21, 1977. S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Beason, 690 F.2d 439, 442 (5th Cir. 1982), cert. denied, ___ U.S. ___., 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983). 4 Foster was a defendant in Ruppel. He was acquitted by reason of insanity. See 666 F.2d at 266. *®. A load of marijuana arrived aboard tne MONKEY in October 1976. The government did not charge that Cauble was involved with that load. Hawkins’ story is related in detail in United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981). %*. Cauble Enterprises loaned Foster $6,000 more on February 22, 1977. l6a 2. February-June 1977: The MONKEY The smugglers decided to move the operation from Georgia to Texas. Hawkins met with Foster and Carlos Gerdes” sever- al times to plan the new operation; Foster flew to these meet- ings aboard Cauble Enterprises’ private plane. On February 26, 1977, Foster, Gerdes, Cauble, and Ms. Fern Lynch flew from Denton to Houston; Cauble and Ms. Lynch deplaned in Houston and Cauble told the pilot to con- tinue to Orange. On March 2, 1977, Foster flew to Thomasville to meet Hawkins and Gerdes. Gerdes gave Foster $250,000 cash for setting up the Texas operation.” On March 4, Foster repaid his $31,000 debt to Cauble Enterprises. From March through May Cauble Enterprises loaned Fos- ter $18,000. Cauble Enterprises also paid for Foster’s travel to Houston on May 11-13, 1977. The proceeds of a loan made on May 11 were used to reimburse Hawkins for building a privacy fence at Sneed’s Shipyard in Orange, Texas, where the MONKEY was to arrive. The MONKEY arrived in Orange on May 31, 1977. Foster had arranged for trucks and drivers” to haul the load to the L. R. Ranch near Meridian, Texas. The L. R. Ranch is owned 7”. Gerdes was also known as Carlos San Ramon. He was convicted and the conviction was affirmed by this court. United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981). * Foster showed a valise containing the money to pilot William McKesson, who testified that Foster stated: “Mr. Cauble knows [about the smuggling], but he just doesn’t ask questions.” McKesson claimed that he quit the job two days later. The defense impeached McKesson with his grand jury testimony that he “assumed that Mr. Cauble knew, but as far as he [Foster] saying that Mr. Cauble knew, he didn’t say that.” It also presented testimony that McKesson was fired for poor flying and that he flew Cauble Enterprises’ plane after the day on which he claimed that he resigned. *. The drivers were Willis Butler and Charles Talkington. Talking- ton pleaded guilty. Butler committed suicide. l7a by Cauble Enterprises. Foster paid the ranch foreman to take a vacation and the smugglers used the ranch for approximately two weeks in distributing the marijuana.” Hawkins decided to move to Texas because smuggling was becoming more difficult in Florida and Georgia. He agreed to buy the Cherokee Ranch from Cauble Enterprises and paid Cauble $100,000 down, in cash, which Cauble agreed not to report on his income tax return.*' Hawkins also testified that he met Foster, Cauble, and Ms. Lynch in Cauble’s bedroom three weeks after the MONKEY arrived and paid Foster $250,000 in Cauble’s presence; Foster then gave Cauble the money.* 3. June 1977—May 1978: The BAYOU BLUES After he split with Gerdes, Hawkins set up his own mari- juana smuggling venture. He bought the BAYOU BLUES *” While the group was at the L.R. Ranch, Hawkins had a dispute with Gerdes and Foster left the group. Hawkins gave a pretrial statement in which he referred to a disagreement over his share and expressed the view that the smugglers were taking too many risks. ‘He testified at trial, however, that he left the group because he thought that Gerdes was relying more on Foster's advice than on his. “|. The date of this payment is unclear on the record. The govern- ment in brief states that it occurred at the “bedroom counting ses- sion.” See infra note 42 & accompanying text. Hawkins’ pretrial statement indicated that he made the payment about April 4, 1977. His testimony was that he made the payment at the counting session “approximately three weeks after the MONKEY came in.” *. Hawkins’ statement was that Foster handed two piles of $125,000 to Cauble, saying of the second “this is your half.” His trial testimony dwelled only on Foster’s handing Cauble the money until the prosecutor refreshed his recollection about Foster’s words. Cauble denied that the meeting took place. On appeal, defense coun- sel also suggests that there is a question whether, if Cauble received the money, he did so as a bailee for Foster or as a principal. We do not see the relevance of this distinction; if the meeting occurred and 18a through Martin Sneed, Sr.“ He and Foster used the Cauble Enterprises’ plane to set up the deal.* On September 12, 1977, Cauble flew to Las Vegas with Hawkins and others.* Cauble arranged for Hawkins to launder $100,000 and, on his return to Denton, deposited the money in Hawkins’ account at the Western State Bank. On May 2, 1978, the BAYOU BLUES arrived at Sneed’s Shipyard in Orange, Texas. Foster became involved in trans- porting and storing the marijuana at the last minute when one of the trucks did not appear. The smugglers took the marijuana to the Crockett Range in Crockett, Texas, which is owned by Cauble Enterprises. The next day, however, Foster told Haw- kins to get the truck off the ranch. Also on May 2, Foster flew to Tampa at Cauble Enterprises’ expense to buy a small boat. On May 4, 1978, Cauble flew to Las Vegas. Foster had told Willis Butler, whom he owed $50,000, that Butler could have the money in old bills or “the old man can go to Las Vegas and clean it up for you.” Butler received $50,000 in new $100 bills and later used some of them to pay his lawyer. Twenty-five of Cauble was present, his knowledge of illegal activity afoot can hardly be doubted. Hawkins also testified that: he told Cauble he was a drug smuggler; he smoked marijuana in Cauble’s presence; he discussed smuggling with Ms. Lynch and Cauble; he gave Ms. Lynch marijuana cigarettes on one occasion; Cauble warned him that Foster was talking too much; and Foster told him several times that Cauble knew that Cauble Enterprises’ ranches were being used for smuggling activi- ties. *®. Sneed, Sr. owned Sneeds’ Shipyards, where the MONKEY had landed. He was convicted and his conviction was affirmed on appeal. United States v. Hawkins, 658 F.2d 279 (5th Cir. 1981). * Cauble required Foster and Hawkins to pay for using the plane. Cauble wrote “bills” by hand. * Hawkins paid Cauble about $3,200 for this plane trip. 19a the bills had been delivered by the Federal Reserve Bank to the Valley Bank of Nevada on May 4, 1978. 4. June 1977—April 1978: the JUBILEE While the BAYOU BLUES operation was underway, Gerdes’ organization was also planning more smuggling ven- tures. On July 20, 1977, Gerdes, Foster, and others flew to Las Vegas aboard Cauble Enterpises’ private plane to launder money.” Gerdes and others returned to Texas on July 26 and had breakfast with Cauble at Cauble’s home; Cauble ordered the Cauble Enterprises pilot to fly Gerdes to his home in Knoxville, Tennessee. Gerdes’ organization sought a new boat in October 1977. Foster was looking for a boat at the same time, allegedly to begin a shrimping business. Cauble called two boat brokers on October 5, 1977, seeking a shrimp boat, and later sent Fosterto look at a boat in Aransas Pass, Texas. Gerdes’ lieutenants bought the JUBILEE in November 1977, after meeting Fos- ter while looking for a suitable boat.” The JUBILEE smugglers met in November 1977 at a Hous- ton apartment leased by Cutter Bill’s Western Wear, a busi- ness owned by Cauble Enterprises. In late 1977 Foster asked Cauble’s lawyer’s assistance in leasing a site suitable for a shrimping operation. The lawyer and Foster looked at several * Pilot Crownover testified that he was left alone for six days. When Crownover called Cauble for instructions, Cauble explained that he did not really know what was going on but told Crownover to “hang tight.” Cauble Enterprises’ phone log of incoming calls for this time was missing. “. The three met in Corpus Christi, en route to Aransas Pass, and again in Bayou La Batre, Alabama. Foster flew to Mobile, Alabama, the closest airport to Bayou La Batre, aboard the Cauble Enterprises plane on November 5, 1977. A “Mr. Carlos” telephoned Cauble on November 4, 5, and 7, 1977. 20a places an in January 1978 rented a site at High Island, Texas.” Foster had a large metal structure built at the water’s edge. On December 26, 1977 Foster flew aboard Cauble Enter- prises’ plane to Sarasota and picked up Gerdes. They then flew to Memphis and on to Houston; from there they boarded a commercial plane and flew to Las Vegas. On December 30 Cauble flew to Las Vegas. On January 1, 1978, Cauble delayed his party’s takeoff from Las Vegas to converse with Gerdes at the airport. The JUBILEE arrived at High Island on January 27, 1978. Eight smugglers, including Gerdes, Foster, and three Cauble Enterprises’ employees” awaited the JUBILEE’s arrival fora week at the Cutter Bill’s apartment. The marijuana was un- loaded and driven to the Crockett Ranch. Butler and Washing- ton then took one truckload to the Mercer Rauch, near Fort Worth.” Cauble Enterprises also owns the Mercer Ranch. The * The owner of the High Island property told the attorney and Foster that it was unsuitable for a shrizuping operation because it was too far from the Gulf, lacked facilties, and had no source of clean water for making ice. He and his brother later received $15,000 from Foster, allegedly as salary and reimbursement for funds spent on materials and labor in building a fishhouse and drilling a well at High Island. * Butler, Talkington, and Larry Washington. * The Mercer Ranch was much-discussed after the second JUBILEE load. A smuggler known as “Big Nose” opened every sack of marijuana in the truck and some marijuana spilled and was left at the ranch. Foster told Larry Washington that the Texas Rangers had found the marijuana and that he would have to pay a judge $10,000 to get the heat off. Texas State Judge Byron Matthews told Cauble of a rumor that marijuana residue had been found at the Mercer Ranch. Cauble called Foster in and told him that a Texas Ranger had told Judge Matthews that there was marijuana at the Mercer Ranch. Foster denied knowing anything about it and this denial satisfied Cauble that the report was untrue. 2la smugglers distributed the marijuana from the Crockett Ranch during the next two weeks. During February and March 1978, the Cauble Enterprises plane made three trips to Alcoa, Tennessee, near the home of John Ruppel.*' On March 21, 1978, Foster and Gerdes flew by commercial aircraft to Memphis and Cauble Enterprises paix their fare. On April 4, 1978, the JUBILEE arrived at High Island. For the week before its arrival the smugglers had again resided at the Cutter Bill’s apartment. Butler and Washington again trucked the marijuana to the Crocke*t Ranch and the smug- glers distributed it during-the next two weeks. - In April or May 1978 Larry Washington called Cauble to find out whether Foster had left Washington $5,000 due him from the second JUBILEE load. Washington asked whether Foster had left a package for him and Cauble said: “No. What was it?” Washington replied: “Money.” Cauble told Washington to come to the ranch for the money. When he arrived, Cauble gave him a briefcase, which Washington had given to Foster, containing $5,000; Cauble asked Washington if it was a loan or if Foster owed him the money. 5. June-November 1978: The AGNES PAULINE During June and July 1978, Foster flew to Tampa, Florida, Beaumont, Texas, and Knoxville, Tennessee, at Cauble Enter- prises’ expense. Foster, Butler, Washington, and James Hol- land discussed smuggling another load of marijuana in August 1978. During August or September 1978, Cauble told Washington that Carlos had called to warn Cauble that Foster was talking 5. Ruppel was convicted on several charges in connection with the smuggling schemes. We affirmed his convictions in United States v. Ruppel, 666 F.2d 261 (5th Cir.), cert. denied, __ U.S. —_, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). 22a too much and to say that he “didn’t want to do any more business with” Foster. Cauble also warned Butler and Wash- ington not to have any more dealings with Foster. Foster disappeared during August 1978. The AGNES PAULINE arrived in Port Arthur, Texas, on November 29, 1978. It was seized by agents of the Drug Enforcement Administration. 6. The Cash Deposits During late 1976 and early 1977, Cauble Enterprises was burdened with debt. The partnership lost money during each of the years involved here except 1978, in which it broke even. In January 1978 Cauble Enterprises’ special account at West- ern State Bank was $100,000 overdrawn; it also showed a deficit balance on March 1, 1978. On April 8, 1978, Cauble flew to Les Vegas to play in the World Series of Poker. He lost his $10,000 entry fee but, when he returned to Texas, he told John Gray, Chairman of the Board of the Dallas International Bank, that he had won $260,000 in a side game and wanted it worked into his accounts at the bank.” Gray suggested that Cauble take the money to “his own bank in Denton.”™ At Western State Bank, Cauble Enterprises was on a list of persons and businesses exempt from the requirement that all cash deposts exceeding $10,000 be reported to the Internal Revenue Service. Cauble Enterprises deposited $113,900 cash to its Western State Bank Special Account in Apri! 1978; 52. At that time Cauble, either individually or through Cauble En- terprises, owned 20% of Dallas International Bank’s stock. He later gained control of 55% of the bank’s stock. 5. Cauble or Cauble Enterprises owned 87% of the shares of the Western State Bank of Denton. 4 See 31 U.S.C. § 1081 (1976); 31 C.F.R. § 103.22 (1981). Hawkins and Foster were also on this exempt list. 23a $182,000 cash in May, and $124,300 cash in June. Cash deposits in 1978 totaled more than $692,000; cash deposits in 1977 amounted to approximately $220,000; in 1976 cash deposits were $14,600.” D. Challenges To The Evidence 1. The Predicate Acts Cauble contends that the proof of the RICO predicate offenses was insufficient because the government failed to prove beyond a reasonable doubt that he aided and abetted either the smuggling episodes or the acts of travel. In determ- ing whether the evidence is sufficient, we inquire whether a reasonable juror might have been convinced of the defendant’s guilt beyond a reasonable doubt.” To prove a person guilty of aiding and abetting, the govern- ment must show that the defendant associated himself with an unlawful venture, participated in it with the desire of accomplishing the illegal end, and sought by his actions to % Total cash deposits in 1979 amounted to $100,700. This figure included an $80,000 deposit on January 9, 1979. The deposit slip stated that this amount was the remainder of Hawkins’ down pay- ment on the Cherokee Ranch. Many of the carbon copies of deposit slips Cauble Enterprises turned over to the grand jury in response to its subpoena had hand- or typewritten notes explaining the source of the cash, such as “cattle sales” and “gambling winnings.” These notations did not appear on the bank’s original deposit slips. For example, a deposit slip dated March 17, 1978, for $20,700 carried the notation “Down Payment on Sale of Cherokee Ranch to Raymond Hawkins.” Cauble testified that the deposit was unrelated to the Cherokee Ranch sale but that he “may have” instructed the bookkeeper to type the information on the slip. %. United States v. Bell, 678 F.2d 547, 549 (5th Cir.) (en banc), cert. granted on other grounds, U.S. , 103 S.Ct. 444, 74 L.Ed.2d 600 (1982). 24a make it succeed.” The defendant must intend to commit the offense and participate in some manner to aid its commission, but need only aid and abet, rather than commit, each element of the crime.* Cauble’s brief states that the proof “nowhere discloses” that he was or could have been aware of any of the specific smuggl- ing episodes or of the purpose of the airplaine flights. This assertion is flatly contradicted by the record. Both Hawkins and Washington testified that, in their opin- ion, Cauble knew about the smuggling. McKesson testified that Foster told him that Cauble knew about the smuggling. Although the evidence was contradicted, a reasonable juror might have believed it. Furthermore, there was voluminous circumstantial evi- dence of Cauble’s knowledge. This included several large loans to Foster from Cauble Enterprises, including one that was to be reloaned to Hawkins; Cauble’s communications with Carlos Gerdes; his trips to Las Vegas; his paying for Foster to look for a boat; and his making significant changes in the business practices of Cauble Enterprises during the years in which the smuggling occurred.” There was also repeated testimony that only Cauble could authorize the use of the airpline. One pilot was dismissed for flying the plane to have it cleaned without Cauble’s permission. This testimony provided support for the possible inference that Cauble knew of the various uses of the plane. 57. United States v. Ballard, 663 F.2d 534, 542-43 (5th Cir. 1981), modified, 680 F.2d 352 (5th Cir.1982) (per curiam). %* United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982). 5%. There was, for example, testimony that Foster never flew on the Cauble Enterprises’ airplane without Cauble before late 1977. There was also evidence that Cauble Enterprises had cash deposits of only some $14,600 in 1976 as opposed to $200,000 in 1977 and $692,000 in 1978. 25a A reasonable jury might have concluded on the record that Cauble knew of the drug-smuggling activities and knew the purpose of the acts of travel. Having reached the decision to reject Cauble’s lack-of-knowledge defense, it might have con- cluded that Cauble was associated with, participating in, and seeking the success of a series of smuggling incidents. It might have decided that activities leading up to the ultimate acts of smuggling included the many acts of travel charged. In short, we are unable to say that a reasonable person would necessari- ly have entertained a reasonable doubt, after hearing the government’s proof, that Cauble aided and abetted the acts of travel and the smuggling. 2. The Enterpise Element Cauble argues that all of his RICO convictions must be set aside because the government failed to prove that he was in any way culpably connected with any enterprise. We treat this as a challenge to both the government’s proof that there was a RICO enterprise and that there was a nexus between the enterprise, the racketeering activities, and Cauble. Cauble contends that the government’s proof demonstrated only that the racketeering activities were committed by and related to an enterprise-in-fact, the “Cowboy Mafia.” Thus, he suggests, the government failed to adduce sufficient evidence to show that Cauble Enterprises was the RICO enterprise. In Turkette, the Supreme Court held that the existence of an enterprise “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”” In cases in which the govern- . 452 U.S. at 583, 101 S.Ct. at 2528, 69 L.Ed.2d at 254. Whether the government must prove the enterprise element with proof differ- ent from that used to demonstrate the pattern of racketeering activ- ity seems to be an open question. See United States v. Cagnina, 697 F.2d 915, 920-21 (11th Cir. 1983). Because in this case the evidence of these two elements did not coalesce, we need not address the ques- tion. Nor do we need to decide whether, as the court held in United 26a ment charges that a legal entity is the enterprise, proof that the entity has a legal existence satisfies the enterprise ele- ment. This is because, by definition, a legal organization such as a partnership has an ascertainable structure, operates as a continuing unit, and has a purpose common to its members and employees. The government’s proof demonstrated that Cauble Enter- prises is as a limited partnership organized under the laws of Texas. It proved that the partnership has a formal organiza- tion and has operated continuously since 1972 for the purpose of seeking maximum long-term appreciation of the partners’ capital. It demonstrated that Cauble Enterprises is an entity different from both the person, Rex C. Cauble, and the pattern of racketeering activity it sought to punish. Having shown that this entity existed, the government met the burden of proving the enterprise element.” 3. “Conducting” The Enterprise's Affairs “Through” A Pattern Of Racketeering Activity Cauble contends that the government’s proof demontrated a nexus between the smuggling activity and the “Cowboy States v. Bledsoe, 674 F.2d 647, 664-65 (8th Cir.), cert. denied, __ U.S. ——, 103 S.Ct. 456, 74 L. Ed.2d 608 (1982), it is essential that an enterprise have an ascertainable structure, operate as a continuing unit, and have a goal common to its members. See Cagnina, 697 F.2d at 921 (suggesting that this test conflicts with Fifth Circuit test). Here the enterprise had all of these characteristics. 5. See United States v. Griffin, 660 F.2d 996, 999 (4th Cir.1981), cert. denied, 454 U.S. 1156, 102S.Ct. 1029, 71 L.Ed.2d 313 (1982); see also Bennett v. Berg, 685 F.2d 1053, 1060 (8th Cir.1982) (“Legal entities are garden-variety ‘enterprises’ which generally pose no problem of separateness from the predicate acts”); Hartley, 678 F.2d at 987-90 (corporation as both enterprise and defendant); cf. United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir. 1982), (division of corporation may be RICO enterprise but can- not be RICO conspiracy defendant), cert. denied, U.S. , 103 S.Ct. 729, 74 L.Ed.2d 953 (1988). 27a Mafia,” rather than Cauble Enterprises. Therefore, he con- tends, the evidence was insufficient to prove that he “con- ducted” Cauble Enterprise’s affairs “through” acts of racket- eering. Because we have concluded that a reasonable jury might have believed that Cauble aided and abetted the commission of the charged racketeering acts, we inquire whether his position in Cauble Enterprises facilitated the commission of the acts and whether the acts affected Cauble Enterprises. Based on the evidence, a reasonable jury might have concluded that none of the acts of travel would have occurred but for Cauble’s ability to dispatch the Cauble Enterprises’ assets to pay for commercial flights. Furthermore, a jury might reasonably have concluded that Cauble’s position in Cauble Enterprises made it possible for him to make available the funds for loans, the ranches, and the other assets of the enterprise that the smugglers used. Therefore, the government’s proof was suffi- cient to satisfy the requirement that the defendant’s position in the enterprise facilitated the commission of the racketeering acts. Finally, there is the question whether the racketeering acts affected the enterprise. In this case a reasonable juror might have concluded that the racketeering acts led directly to the successful smuggling ventures, which, in turn, led to the large cash deposits to Cauble Enterprises’ account at Western State Bank. This is a sufficient effect to satisfy the test. We, there- fore, conclude that the government successfully shouldered its burden of proving that Cauble conducted or participated in the conduct of the enterprise’s affairs through a pattern of racket- eering activity.” ®.This disposes of Cauble’s challenge to his conviction under § 1962(c). This case is simply not like United States v. Nerone, 563 F.2d 836 (7th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1577, 55 L.Ed.2d 801 (1978), which Cauble relies on. In Nerone the court held that the government failed to prove the nexus between a legitimate corporation and gambling activity conducted on premises owned by 28a 4. The Conspiracy Count Cauble was charged with conspiracy to conduct and parti- ciapte in the conduct of Cauble Enterprises’ affairs through a pattern of racketeering activity. He contends that his convic- tion under § 1962(d) must be reversed because the government failed to prove that he “agreed to join an enterprise by means of committing two predicate acts.” Our decisions establish that a § 1962(d) conviction requires proof of the enterprise and racketeering elements plus the defendant’s objective manifestation of intent to- participate, either directly or indirectly, in the affairs of the enterprise.” As we stated in Phillips, in order to prove a RICO conspiracy the government must prove “the additional element of agree- ment.” 664 F.2d at 1012.” A reasonable jury might have concluded that Cauble agreed to conduct Cauble Enterprises’ affairs through a pattern of racketeering activity. It might have believed the direct testi- mony of Hawkins and Washington that Cauble was involved in the smuggling and, therefore, concluded that Cauble agreed the corporation. It stated: “(The government] made no attempt to show that the proceeds of the casino operation were invested in [the corporation]. Nor did it endeavor to show that gambling revenues were used by or in any way channelled into the corporation or that persons were paid out of gambling revenues to perform services for {the corporation].” 563 F.2d at 851. In this case a jury might have concluded that proceeds of smuggling were deposited te Cauble Enterprises’ bank account and used in conducting the partnership’s day-to-day affairs. ®. United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L. Ed.2d 344 (1978); see Kopi- tuk, 690 F.2d at 1323. *. The agreement involved must include the vital element of agree- ing to commit the predicate acts of racketeering. Martino, 648 F.2d at 383. 29a to commit or aid and abet the smuggling predicates.* It might have believed the circumstantial evidence that Cauble used Cauble Enterprises’ assets to loan money to the smugglers and to finance their travel ard, therefore, that Cauble agreed to commit or aid and abet the acts of travel. It might also have believed the circumstantial evidence that Cauble was aware that other assets were being used to arrange marijuana smuggling deals, to provide a haven for the smugglers, and to store and distribute marijuana. The evidence is sufficient to support Cauble’s conviction on the conspiracy count. 5. The Investment Count Cauble next contends that the evidence was insufficient to convict on the § 1962(a) count. He contends that the govern- ment failed to prove that he gained “income” from a pattern of racketeering activity. He also maintains that the government failed to prove that particular funds invested in the enterprise were derived from a particular unlawful transaction in which he was culpably involved. Cauble argues that he derived no income because money advanced or loaned to the smugglers and later repaid was not “income.” We neei not decide the validity of this contention” because a reasor .ble juror might have concluded that Cauble received “income” based on the substantial cash deposits to Cauble Enterprises’ special account during 1977 and 1978. Cauble also argues that the government must do more to support a § 1962(a) conviction than prove that the income was %. There was contradictory testimony on this point from Cauble and from James Holland. The decision which witnesses to believe was, however, for the jury. See Elliott, 571 F.2d at 884. %. The Supreme Court has agreed to consider our broad construc- tion of the word “interest” in the RICO forfeiture provision, 18 U.S.C. § 1963(a)(1) (1976). United States v. Martino, 681 F.2d 952 (5th Cir.1982) (en banc), cert. granted sub nom. Russello v. United States, ___ U.S. —__, 103 S.Ct. 721, 74 L.Ed.2d 948 (1983). 30a derived from a pattern of racketeering activity. He contends that RICO’s legislative history demonstrates that Congress intended to require the government to “trace” illicitly-derived funds from a particular unlawful act to the enterprise. Cauble relies on the Justice Department’s observation on a related bill that “tracing of funds known to be derived from racketeering activities to their eventual investment in a busi- ness enterprise [is required] in establishing a violation of sub- section (a) of Section 1962.” He also relies on a law review article by one of RICO’s primary sponsors stating “only one of the three pi © > sitions in Title IX requires tracing of funds.”™ We do i:c* .mpart to the word “tracing” as used in these statements the same precision as does Cauble. If the prosecu- tion had demonstrated that Cauble made substantial, unex- plained cash deposits into his personal account but not that the money was ever used in any way related to Cauble Enter- prises, it would have failed to meet its burden of “tracing.”” But the prosecution need prove only that illegally derived funds flowed into the enterprise;” it need not follow a trail of specific dollars from a paiticular criminal act. The government presented evidence of large cash deposits to Cauble Enterprises’ account and of marijuana smuggling in which Cauble and Cauble Enteprises’ employees played a role. 7. Measures Relating to Organized Crime, 1969: Hearings Before the Subcomm. on Criminal Laws and Procedure of the Senate Judiciary Comm., 91st Cong., lst Sess. 387-88 (1969). %. McClellan, The Organized Crime Act (S. 30) or its Critics: Which Threatens Civil Liberties?, 46 Notre Dame Law. 55, 145 (1970). See 116 Cong.Rec. 18,941 (1970) (same; giving as example “FBI[’s] trac{ing] money skimmed from Las Vegas casinos into Swiss bank accounts”). ®. Cf. United States v. McNary, 620 F.2d 621 (7th Cir. 1980) (stat- ute does not require showing of direct employment of illicit income). 7. See, e.g., Nerone, 563 F.2d at 851, quoted in supra note 62. 3la The jury might reasonably have inferred that there was a sufficient nexus between the money and the enterprise to satisfy the “investment” requirement of § 1962(a).” E. Jury Instructions Cauble challenges several of the court’s instructions to the jury. Because his lawyers lodged no objection to the charge below, we review each of the allegedly defective instructions only for plain error.~ This means that we will not reverse unless the instruction is so clearly wrong that our failure to notice it would result in a miscarriage of justice or would seriously affect the integrity or public reputation of the judicial proceeding.” Cauble first claims that the trial judge erred in charging the jury on the enterprise element. He contencis that the judge’s instructions failed to make clear that the government was required to prove beyond a reasonable doubt that Cauble En- terprises was the RICO enterprise whose affairs were con- ducted through a pattern of racketeering activity. This in- struction, Cauble claims, amounted to a directed verdict of guilt on the enterprise element.” 7. See United States v. Parness, 503 F.2d 430, 436 (2d Cir. 1974) (given the nature of the enterprise involved, the government’s in- ability to trace the proceeds of particular unlawful debt collections to the enterprise the defendant acquired was “not surprising”), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). ™ Fed.R.Crim.P. 30, 52(a). . United States v. Graves, 669 F.2d 964, 971 (5th Cir.1982); United States v. Thevis, 665 F.2d 616, 645 (5th Cir.) (RICO case), cert. denied, U.S. , 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). Patently not all prejudicial errors amount to plain error. See United States v. Herzog, 632 F.2d 469, 472 (5th Cir. 1980); 6 L. Orfield, supra note 28, at 448. %. A directed verdict of guilt is always plain error. United States v. Musgrave, 444 F.2d 755, 762 (5th Cir.1971). he 32a The trial! judge defined “enterprise” by reading the statuto- ry definition to the jury.” He then stated: The “enterprise” charged in this case in Counts 1, 2 and 3is Cauble Enterprises. Cauble Enterprises is a limited part- nership formed pursuant to the laws of Texas with Rex C. Cauble as the sole general partner. Under the Texas Uni- form Limited Partnership Act, as the general partner, Rex C. Cauble has the mght to control and manage the affairs of Cauble Enterprises and is liable for all debts and obligations of Cauble Enterprises. The judge then instructed the jury on the three substantive RICO counts. He prefaced his charge on each count with the admonition that “the Government must prove each of the following essential elements beyond a reasonable doubt.” Each charge included the enterprise element and in no charge did the judge tell the jurors that Cauble Enterprises was the RICO enterprise.” In short, the judge’s instructions adequately conveyed to the jury the requirement that they conclude beyond a reasonable See supra note 13 & accompanying test. * The relevant portion of the § 1962(a) charge stated: Fourth: That the Defendant used or invested, directly or in- directly, any part of such income, in acquisition of any interest in, or the establishment or operation of the enterprise. Fifth: That the enterprise engaged in, or its activities affected interstate or foreign commerce. (emphasis added.) The § 1962(c) charge stated in pertinent part: Fourth: That through the commission of two or more connected offenses the Defendant conducted or participated in the conduct of the en‘*erprise. Fifth: That the enterprise engaged in, or that its activities affected interstate or foreign commerce. (emphasis added.) The § 1962(d) charge stated: First: That a conspiracy to conduct or participate directly or indirectly in the conduct of the affairs of an enterprise engaged in or affecting foreign or interstate commerce through a pattern of racketeering activity, consisting of the commission of two or more acts or racketeering activity, was willfully formed by two 33a doubt that Cauble Enterprises was the RICO enterprise. The judge told the jurors that the enterprise charged was Cauble Enterprises; he never told them that the RICO enterprise was Cauble Enterprises. The directive left the jury free to conclude that the government failed to prove that Cauble Enterprises was the RICO enterprise. Accordingly, it was not plainly erroneous. Cauble nevertheless argues that the trial judge’s instruction on Count Three was wrong because it impermissibly combined the RICO enterprise and Cauble Enterprises.” But this part of the instruction was merely a summary of the indictment and not a direction to the jury. As our previous discussion of the charge demonstrates, the trial judge made a distinction be- tween Cauble Enterprises and the RICO enterprise in in- structing the jury about the elements of the offense. There was no plain error here. Cauble next faults the district judge’s failure to define the word “income” in the § 1962(a) count instructions. He argues that the failure was particularly prejudicial because “fund sources were a critical issue at trial.” or more persons and was existing at the time alleged in the indictment. Second: That the Defendant, with knowledge of the conspiracy, willfully became a member of the conspiracy by agreeing to participate directly or indirectly in the conduct of the affairs of the enterprise. . . . (emphasis added. ) 7 The judge stated that the indictment charged that: Rex C. Cauble, individually and doing business as Cauble Enter- prises, was employed by and was associated with an “enter- prise” as defined by Title 18, United States Code, Section 1961(4). It is further alleged that the Defendant did unlawfully, setter | and willfully conduct and participate, directly and indirectly, in the conduct of the affairs of Cauble En ses, through a pattern of racketeering activity. Count 3 her c s that the alleged enterprise did engage in and its activi- - affect interstate and foreign commerce. (emphasis add- 34a This ingenious transition from sources of income to existence of income points up the weakness of Cauble’s argument. The defense did not dispute at trial and does not dispute now that Cauble Enterprises’ Special Account received substantial de- posits of cash. It disputed whether the funds came from drug smuggling or cattle sales. The judge’s failure to define this word of common usage and meaning did not fall to the level of plain error.” Cauble next challenges the trial judge’s charge on the RICO predicates. He suggests that the judge’s instruction that the © jury could consider “any act” in violation of the Travel Act as an instance of racketeering activity impermissibly amended the indictment by allowing the jury to consider the Travel Act violations alleged in Counts Four, Nine, and Ten as RICO predicates even though they were not charged as such.” The trial judge should have made it clear to the jurors that only the predicate acts alleged in the RICO counts could sup- port a RICO conviction.” His failure to do so was not plain error, however, in view of his instruction to the jury that: “A separate crime or offense is charged against the Defendant in each count of the Indictment. Each offense and the evidence pertaining to it should be considered separately.” We find no ™. United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir. 1980); United States v. Crockett, 506 F.2d 759, 762 (5th Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975). ® The instruction read: An act in violation of either of these statutes [18 U.S.C. § 1952 or 21 U.S.C. § 952] on one occasion would constitute “an act of racketeering activity” separate and apart from a later act in violation of the same statute. ” Contrary to the government’s suggestion, merely drawing the jury’s attention to the predicate offenses alleged during a summary of the indictment does not suffice to limit the jury’s consideration on the RICO counts to the predicates. Nor does the district judge’s instruc- tion that “{iJn considering racketeering acts . . . you are limited to those acts charged in the /ndictment... .” (emphasis added). 35a miscarriage of justice in the trial judge’s failure to make ex- plicit what was implicit." Cauble finally assaults the judge’s failure to instruct the jury that its verdict on the RICO predicates had to be unanimous. The judge stated that the government had to prove two acts of racketeering activity beyond a reasonable doubt, and that the jury’s verdict had to be unanimous. It might have been better practice to reinforce this by telling the jury that the jurors must be unanimous on each predicate, but had trial counsel made such a request the trial judge would have been able to ecnsider it and likely would have granted it. When counsel sits idly by,.the trial judge is not given the opportunity to reassess the charge. In the absence of objection, it was not necessary for the judge to elaborate this phase of the charge because he gave an express instruction that each juror had to agree to the verdict. No miscarriage of justice resulted from this omission.” *!. Our task in evaluating jury instructions is to assess the instruc- tions in the light of the entire trial to determine whether the charge adequately presented the issues to the jury. Graves, 669 F.2d at 970. Reversible error—much less piain error—does not occur so long as the charge viewed as a whole accurately frames the legal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0580%3A1. Public record. Not legal advice.