Amicus Curiae Brief — Scheidler v. National Organization for Women, Inc.

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Nos. 01-12 11 and 04-1252

Hn the Supreme Court of the United States

JOSEPH SCHEIDLER, ET AL., PETITIONERS

D.

NATIONAL ORGANIZATION FOR WOMEN. ING. ET AL.

OPERATION RESCUE, PETITIONER

,

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

EDWIN S. KNEEDLER

Ae hiweg Nolicitoy (re sie ral

(‘ome / al Ri cord

JOUN C. RICHTER

Acting Assistawt Atorin /

(re hed ral

MIchaAkh R. DREEREN

Li poly Solicitor Geveral

LIsvisS. BLATT

Assistawt fo lhe Nol cio

(re sie ral

KATHLEEN AL FELTON

FRANK MARINI

Aton iis

ay mertovewl of J istic

/

Washington, DC 205 30-000]

{ J02) ols hed Py

ES

JE

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether the Hobbs Act, 18 U.S.C. 1951, prohibits acts

or threats of physical violence that obstruct, delay, or affect

interstate commerce but have no connection to either robbery

or extortion.

2. Whether private litigants may obtain equitable relief

in a civil RICO action under 18 U.S.C. 1964.

(I)

TABLE OF CONTENTS

Page

Interest of the United States .................cccceeess |

Statutory provisions involved ...................000000. 2

en odd cc cccncccccecccccccecs 2

ee eco cc ccccceseccesececcece 6

Argument:

1. The Hobbs Act does not criminalize acts or

threats of physical violence that are not linked to

a planned or intended robbery or extortion ......... 7

A. The text of the Hobbs Act requires the

prohibited physical violence to be in

furtherance of a planned or intended

EE 8

B. The Hobbs Act's history confirms that the

Hobbs Act does not contain a free-standing

prohibition on violence that obstructs,

delays, or affects commerce .................. 13

C. Criminal liability has never been imposed

under the Hobbs Act for violence indepen-

dent of an intended robbery or extortion ....... 18

II. RICO does not authorize a private cause of action for

eee een ccescccesecccececces: 19

A. RICO’s text and structure vest exclusive

authority in the Attorney General to sue

EEE 19

(IID)

IV

Table of Contents—Continued: Page

B. A comparison with the antitrust laws

shows that Congress did not create a

private injunctive action ...............s0000. 22

C. Policy considerations do not support a private

right to injunctive relief under RICO ......... 27

CORRE cc cccccccccnccncceccesccecessesesecesucsqes 29

TABLE OF AUTHORITIF®

Cases:

Agency Holding Corp. v. Malley-Duff &

Assoc., 483 U.S. 143 (1987) ..............6.. 26, 27

Bates v. United States, 522 U.S. 23 (1997) ....... 13

California v. American Stores Co., 495 U.S.

271 (1990) ...... ssusnensenndnegnidianmndene 23, 28

Califano v. Yamasaki, 442 U.S. 682 (1979) ....... 24

Caminetti v. United States, 242 U.S. 470

GREED ecccccocvcecnccensctséadadndadeunstaosess 13

Carter v. United States, 5380 U.S. 255 (2000) ..... 13

Chickasaw Nation v. United States, 534 U.S.

OG i ncccccccocecksscdendshudseoenasenseses 13

D.R. Wilder Mfg. Co. v. Corn Prods. Ref. Co.,

aD ee SEGRE cccccocccccncssesususs 23, 24, 28

Evans v. United States, 504 U.S. 255 (1992) ..... 14

FCC v. Pacifica Found., 438 U.S. 726 (1978) ..... 17

Farmers’ & Mechs. Nat'l Bank v. Dearing,

FD TA BGS coccccaceéncccecscessesnsnetes 24 -

Geddes v. Anaconda Copper Mining Co., 254

ee SEP GREEED cccccvccecessncesesuccesesssenes 23

Cases—C ontinued: Page

General Inv. Co. v. Lake Shore & Mich. S.

Ry., 260 U.S. 261 (1922) .................00.. 23,24

Holmes v. Securities Investor Prot. Corp.,

SES UB. SUB (IGE)... cc cccccccccccccces 23, 25, 26

Laime v. United States Tr., 540 U.S. 526

EEE Sbedudedncnedddceteenbaedenmsenndnasenen 13

Minnesota v. Northern Sec. Co., 194 U.S. 48

GE ‘Secduseuccsdecneeddaswncseewidnaeasoans 23

Mitchell v. Robert DeMario Jewelry, Inc.,

361 U.S. 288 (19GD) 2.2... cece cece w cc eeee 24

Muniz v. Hoffman, 422 U.S. 468 (1975) .......... 17

National Org. for Women, Inc. v. Scheidler,

eee 2,3

Paine Lumber Co. v. Neal, 244 U.S. 459

GEEUED seccdusdeccenusiddcccnsudsbbudesebikeses 23

Pennsylvania Dep't of Corrs. v. Yeskey,

ES I 13

Pfizer Inc. v. India, 434 U.S. 308 (1978) ......... 23

Porter v. Warner Holding, Co., 328 U.S. 395

GUE. nucdinnddusncustaleeduimendaduseiaceioe 24

Religious Tech. Ctr. v. Wollersheim,

796 F.2d 1076 (9th Cir. 1986), cert. denied,

RE ee 21,27

Russello v. United States, 464 U.S. 16 (1984) ..... 28

Salinas v. United States, 522 U.S.52(1997) ..... 13

Scheidler v. National Org. for Women, Inc.,

537 U.S. 393 (2003) ......... 1, 2, 3, 4, 5, 9, 10, 14, 16

Vi

Cases—C ontinued: Page

Sedima, S.P.RJ. v. Imrex Co., 473 U.S. 479

GED cccccncoveseceseucssascuccasceseseses 20, 26

Stirone v. United States, 361 U.S. 212 (1960) ...... 9

Texas Indus., Inc. v. Radcliff Materials, Inc.,

Ge COED nuskccucesedscesecesescesonss 23

Trainmen v. Baltimore & Ohio R_R.,

ee IED cncuccdassodondencesnédesene 13

United States v. Bonanno, 879 F.2d 20

EPG ENED onacecedcessncossnenseassosacedese 20

United States v. Cooper Corp., 312 U.S. 600

EEE ecccsonnsencosnasuncetadescesnteoescdies 24

United States v. Culbert, 435 U.S. 371

EEE dandcenceduccsidunsedeadadmetnaes 9, 14, 15, 16

United States v. Dworkin, 855 F.2d 12

ERG ED cndececdcdansodbondodanessicanse 11

United States v. Enmons, 410 U.S. 396

GD. ncuddcnusedesciecdcddandeedons 10, 13, 14, 19

l'nited States v. Franks, 511 F.2d 25

(6th Cir. ), cert. denied, 422 U.S. 1042 and

EN ER ie ee ee Oe oe 11,19

United States v. Philip Morris USA, Inc.,

396 F.3d 1190 (D.C. Cir. 2005), petition for

cert. pending, No. 05-92 (filed July 18, 2005) ..... 25

United States v. Teamsters, 315 U.S. 521

DD pcescadaduseaudedsmeddbdbeoutedsennnonn 14

United States v. Turkette, 452 U.S. 576

ERED cadcccccdcuccecceuscoedebeeneteseteian 28

United States v. Wells, 519 U.S. 482 (1997) ....... 17

United States v. Yankowski, 184 F.3d 1071

a ae ee eee 19

Vil

Cases—Continued: Page

Whitman v. American Trucking Ass'n,

Pee Ges GE UE asdvessncncdecctnnscsecesees 13

Statutes:

Act of June 25, 1948, ch. 645, 62 Stat. 683:

$1:

Pt. I:

§ 1951:

RUT sucdcacdusdbdsudecannde 6,17

PED UEPEEE dééccencesenseuucac 16, 17

DOU succnnecséncanccendsssenses 17

Anti-Racketeering Act of 1934, ch. 569, 48

Stat. 979:

PEE sénusbcesedsutosustedcscuse 5,14

PLE nddudncceseddanndcdsneseans 14

PE? encudachanasctGuddesatideein 14

PEED dcncedtenwicendanedoteos 12,14

Clayton Act, 15 U.S.C. 15 et seq.:

PE PD ED acécsuesdesesdccsocesoneeaied 7

DE obavedcdbedscsaucecumess 7, 23, 25

Freedom of Access to Clinic Entrances Act of

1994, Pub. L. No. 103-259, § 3, 108 Stat. 694...... 28

Hobbs Anti-Racketeering Act of 1946, ch. 537,

PPE GP edddcbuedccoutaudsdanntedsonens 5, 12,14

PGE : Cocccddddkdedecencecedanoonns 15

PEPE adcvececendcusdneseéssadsoina 15

PEE dcedcddcacuedaseddcsesesenenn 15

PEE b0dsccesddecuddnnstacseeneones 15

Pe EE bdbccbencctdsadenedssmeensdeds 15

Vill

Statutes—C ontinued: Page

Organized Crime Control Act of 1990, Pub. L.

No. 91-452, § 904(a), 84 Stat. 947 ................ 27

Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. 1961 ef seq.:

PPG ED cccccdeccesdavasdansesdsosnss 3

PP is BED cotcccsseceseess 1, 2,6, 7, 19, 25, 27

18 U.S.C. 1964(a) ........ 6, 7, 19, 20, 21, 22, 24, 25

BD DAK. TESTED ccccececccces 6, 19, 20, 21, 22, 25

18 U.S.C. 1964(c) .......... 2, 3, 6, 7, 20, 21, 22, 25

Sherman Act, ch. 647, 26 Stat. 209 ................. 6

DE Be BD vececcdsccsoceccscsseoss 23, 25

DEED scdducécdecnacesédsvecsucsnennt 23

es GR, BP Cae BED cecccccccccscscoccéesecs 3

SPUD Sbcccdcecdedscdcnckddcdosesedees 28

SPU EES scccsecncccccacacsccensesas 28

SPU ED Kddbdvecdecedasoucsonnss 1, 2, 3, 5, 6, 18

BP ie SEED necccsdcdanddcossenesess 5, 7,8, 9,13

PU MED wrcccncécccsncscocecsonsnieene sf)

Pts SED scccoscséodacenessedseenossuar i)

Miscellaneous:

S88 Cong. Ree. S217 (1948) ... cc cccccccccccccevces 16

91 Cong. Rec. (1945):

DD, BED cdccacesaccoscceccscecconceceesceseee 14

Dy PEE vobeccccodctandcenscesseceucensnescans 16

116 Cong. Rec. (1970):

DEE svccscendendccsdscsucsdnssocousebences 26

DGD cnecocscconsscocssecesesetecssodesens 26

IX

Miscellaneous—C ontinued: Page

DE suecevesescdcesissesecdsosenaseesscess 26

GEE ccc cpcccncoccdonsceccdsseccotensecess 26

Department of Justice: )

Criminal Resource Manual (1997) ............. 19

Handbook for Prosecution of Racketeers

UD SEED Snncccednasechecdeceescedacesass 18

10 United States Attorney's Manual (May 8,

BEEP ddesccccsdcsdcescncvceeéacocenssesesacs 18

H.R. Rep. No. 238, 79th Cong., Ist Sess. (1945) .... 15

H.R. Rep. No. 304, 80th Cong., Ist Sess.

GREED obecnceccccecenesdcodncecoccesecees 6, 16,17

S. Rep. No. 1516, 79th Cong., 2d Sess. (1946) ... 15, 16

S. Rep. No. 1620, 80th Cong., 2d Sess. (1948) ...... 17

Herbert Wechsler et al., The Treatment of

Inchocte Crimes in the Model Penal Code of

the American Law Institute: Attempt,

Solicitation, and Conspiracy, 61 Colum. L.

RLS Se ee ee 11

Jn the Supreme Court of the Gnited States

No. 04-1244

JOSEPH SCHEIDLER, ET AL., PETITIONERS

v.

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.

No. 04-1352

OPERATION RESCUE, PETITIONER

v.

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This Court granted certiorari to review the court of ap-

peals’ decision, following this Court’s ruling in Scheidler vy.

National Organization for Women, Inc., 537 U.S. 393 (2003),

to remand this case to the trial court to determine whether

petitioners’ four_acts or threats of physical violence could

constitute a violation of the Hobbs Anti-Racketeering Act

(Hobbs Act), 18 U.S.C. 1951, or could Support a nationwide

injunction under the Racketeer Influenced and Corrupt Orga-

nizations Act (RICO), 18 U.S.C. 1964. The United States

brings criminal prosecutions under the Hobbs Act as well as

criminal and civil RICO cases that rely on Hobbs Act viola-

(1)

2

tions as RICO predicate acts. It has long been the view of the

United States that the Hobbs Act criminalizes physical vio-

lence only when that conduct is in furtherance of an intended

robbery or extortion. See pp. 18-19, infra. The RICO statute

authorizes the Attorney General of the United States to bring

civil suits for equitable relief. The court of appeals’ holding

that private civil RICO plaintiffs may also seek such relief

could adversely affect the United States’ ability to obtain eq-

uitable relief such as disgorgement when both private parties

and the government seek such relief for the same conduct.

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Hobbs Act, 18 U.S.C. 1951,

and RICO, 18 U.S.C. 1964, are set forth in an appendix to this

brief. App., infra, 8a-10a.

STATEMENT

1. Petitioners are individuals and organizations engaged

in pro-life and anti-abortion activities. Respondents are a

national nonprofit organization that supports the legal avail-

ability of abortions and two clinics that provide medical ser-

vices, including abortions. See National Org. for Women, Inc.

(NOW) v. Scheidler, 510 U.S. 249, 252 (1994); Scheidler v.

NOW, 537 U.S. 393, 397-398 (2003); 04-1244 Pet. App. 25a-26a.

In 1986, respondents brought this RICO action under 18

U.S.C. 1964(c) against petitioners and other defendants alleg-

ing, inter alia, that they conspired to force the closing of

health care clinics that perform abortions, and that they did

so through a pattern of racketeering activity that included

acts of extortion in violation of the Hobbs Act. In 1991, the

district court dismissed the RICO claims for failure to allege

that the predicate acts or the RICO enterprise were economi-

cally motivated. The court of appeals affirmed that ruling.

This Court reversed and remanded, holding that RICO does

not require proof that either the alleged racketeering enter-

3

prise or the predicate acts of racketeering had an economic

motive. NOW v. Scheidler, 510 U.S. at 257.

2. After trial, the jury returned a verdict for respondents

on their substantive RICO claims under Section 1962(¢). The

jury found that petitioners or persons associated with them

had committed 21 violations of the Hobbs Act, 18 U.S.C. 1951;

25 violations of state extortion law; four acts or threats of

physical violence to any person or property; 23 violations of

the Travel Act, 18 U.S.C. 1952; and 23 attempts to commit one

of those crimes. 04-1244 Pet. App. 191a. The jury awarded

$31,455.64 to respondent Delaware Women’s Health Organi-

zation and $54,471.28 to Summit Women’s Health Organiza-

tion. /d. at 149a. Those damages were trebled pursuant to 18

U.S.C. 1964(c). 04-1244 Pet. App. 163a n.10. The district

court subsequently entered a nationwide injunction that en-

joins petitioners, inter alia, from wrongfully interfering with

the right of clinics to conduct their business. Jd. at 165a-174a.

The Seventh Circuit affirmed, holding, inter alia, that

private parties may obtain injunctive relief under RICO. 04 -

1244 Pet. App. 35a-43a. The court also concluded that petition-

_ ers’ conduct constituted extortion under the Hobbs Act. The

court concluded that a person can violate the Hobbs Act with-

out seeking or receiving money or other property as long as

there was a loss to, or interference with the rights of, the vic-

tim. Jd. at 58a-59a.

This Court reversed, holding that petitioners did not ob-

tain or attempt to obtain respondents’ property and therefore

had not committed extortion under the Hobbs Act.

Scheidler v. NOW, 537 U.S. at 410. The Court also concluded

that the jury’s finding of predicate acts of violating state ex-

tortion laws and violating the Travel Act based on extortion-

ate conduct could not be sustained because petitioners did not

commit or attempt to commit extortion. /bid. The Court fur-

ther explained that “[bJecause all of the predicate acts sup-

dq

porting the jury's finding of a RICO violation must be re-

versed, the judgment that petitioners violated RICO must be

reversed,” and accordingly that “[{w]ithout an underlying

RICO violation, the injunction issued * * * must necessarily

be vacated.” Jd. at 411. The Court therefore did not address

“whether a private plaintiff in a civil RICO action is entitled

to injunctive relief under 18 U.S.C..8 1964.” 537 U.S. at 411.

3. On remand to the court of appeals, respondents argued

that the jury’s RICO verdict could be sustained based on the

four predicate acts consisting of acts or threats of physical

violence to any person or property. The court of appeals con-

cluded that this Court in Scheidler v. NOW, supra, had not

addressed that issue and that it had not been within the scope

of the petition before the Court. The court of appeals then

remanded the case to the district court to determine whether

the four predicate acts involving acts or threats of physical

violence were sufficient to support the nationwide injunction

that the trial court had imposed. 04-1244 Pet. App. 28a. In so

doing, the court of appeals observed that the trial court “may

find it necessary” to decide if the language of the Hobbs Act

imposing criminal penalties on any person who “‘commits or

threatens physical violence to any person or property’ consti-

tutes an independent ground for violating the Hobbs Act or,

rather, relates back to the grounds of robbery or extortion.”

Id. at 29a.

In denying rehearing, the court of appeals reaffirmed its

view that the remand to the district court was appropriate,

noting that it had “not, at this point, ruled either implicitly or

explicitly on the Hobbs Act issue, for reasons of judicial econ-

omy and restraint.” 04-1244 Pet. App. 6a-7a. The court of

appeals nonetheless suggested that the physical violence

clause of the Hobbs Act sets forth an independent, free-stand-

ing offense that does not relate back to a robbery or an extor-

tion. Jd. at Sa-15a.

5

Judge Manion, joined by Judge Kanne, dissented from the

denial of rehearing. 04-1244 Pet. App. 17a-24a. He expressed

the view that the court of appeals’ order remanding the case

to the trial court “directly conflicts with the Supreme Court’s

opinion” in Scheidler v. NOW, supra, “rests on an impermissi-

ble reading of the Hobbs Act,” and “unnecessarily revives a

case that is already more than eighteen years old.” Jd. at 19a.

SUMMARY OF ARGUMENT

I. The Hobbs Act does not criminalize acts or threats of

physical violence independent of a planned or intended rob-

bery or extortion.

A. The text of the Hobbs Act, 18 U.S.C. 1951(a), which

imposes penalties on any person who “commits or threatens

physical violence to any person or property in furtherance of

a plan or purpose to do anything in violation of this section,”

refers back to the robbery, extortion, attempts, and conspira-

cies that are made criminal offenses under Section 1951(a).

The “plan or purpose to do anything in violation of this sec-

tion” can only refer to robbery and extortion offenses that are

defined in the first clause of the statute, together with related

attempts and conspiracies. Physical violence without a con-

nection to a planned or intended robbery or extortion is not

prohibited under the plain language of the Hobbs Act.

B. The history of Section 1951(a) compels the conclusion

that the statute should be read according to its clear text.

The Anti-Racketeering Act of 1934, which was the predeces-

sor to the Hobbs Act, did not contain a free-standing prohibi-

tion against physical violence in connection with interstate

commerce. Ch. 569, § 2, 48 Stat. 979-980. Similarly, the

Hobbs Act as originally enacted in 1946 explicitly tied the

prohibited physical violence to robbery or extortion. Pub. L.

No. 486, ch. 537, 60 Stat. 420. Congress did not intend to cre-

ate a new stand-alone crime of physical violence when it

6

passed Section 1951 as part of the 1948 revision of the Crimi-

nal Code. Act of June 25, 1948, ch. 645, Pt. 1, § 1951, 62 Stat.

793; H.R. Rep. No. 304, 80th Cong., Ist Sess. A131 (1947).

Rather, Congress continued to use language that reached

physical violence only when in furtherance of a plan or pur-

pose to commit the offense of robbery or extortion or a re-

lated attempt or conspiracy.

C. It has been the longstanding view of the United States

that the Hobbs Act does not criminalize physical violence in-

dependent of a planned or intended robbery or extortion. In

the two aberrant prosecutions that departed from that view,

the courts rejected the theory of the prosecution. In the 55

years of the Hobbs Act's existence, it appears that no defen-

dant has ever been convicted under the Hobbs Act for physi-

cal violence that did not relate to a planned robbery or extor-

tion.

Il. RICO does not authorize private parties to seek in-

junctive relief.

A. Section 1964(a) confers jurisdiction on federal district

courts to prevent and restrain RICO violations by granting

equitable relief, and Section 1964(b) authorizes only the At-

torney General to bring equitable actions and to obtain tem-

porary equitable relief. Section 1964(c) authorizes private

parties to sue for treble damages and attorney’s fees, but does

not authorize private parties to seek any other relief. The

structure of those provisions demonstrates that Congress

intended to vest the Attorney General with the exclusive au-

thority to bring suit for equitable relief.

B. Congress’s intent to withhold from private litigants the

right to seek injunctive relief is confirmed by the treatment

of the same issue under the antitrust laws. The Sherman Act,

26 Stat. 209-210, created a public equitable action and a pri-

vate treble damages action. This Court interpreted that Act

to foreclose a private injunctive action. Because Section 1964

7

tracks the language and structure of the Sherman Act in that

respect, Congress is presumed to intend that Section 1964

similarly be interpreted not to authorize a private action for

injunctive relief.

That presumption is strengthened by comparison of RICO

with the Clayton Act. Section 4,of the Clayton Act (15 U.S.C.

15(a)) carries forward the Sherman Act's treble damages pro-

vision, but Congress added a new provision, Section 16 of the

Clayton Act (15 U.S.C. 26), that expressly authorizes a private

action for injunctive relief. The fact that Congress used Sec-

tion 4 of the Clayton Act as the template for RICO’s treble

damages provision, 18 U.S.C. 1964(c), without also including

a counterpart to Section 16 of the Clayton Act, compels the

conclusion that Congress intended no such right under RICO.

C. RICO’s purposes are fully consistent with the absence

of a private right to seek injunctive relief. Congress autho-

rized courts to grant the full range of equitable relief in civil

RICO actions, including such dramatic steps as corporate

reorganization and dissolution. 18 U.S.C. 1964(a). Congress

logically vested the Attorney General with the exclusive au-

thority to seek such relief.

ARGUMENT

I. THE HOBBS ACT DOES NOT CRIMINALIZE ACTS OR

THREATS OF PHYSICAL VIOLENCE THAT ARE NOT

LINKED TO A PLANNED OR INTENDED ROBBERY OR

EXTORTION

The Hobbs Act imposes criminal punishment on anyone

who “in any way or degree obstructs, delays, or affects com-

merce or the movement of any article or commodity in com-

merce, by robbery or extortion or attempts or conspires so to

do, or commits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do anything in

violation of this section.” 18 U.S.C. 1951(a). The text and

8

history of that provision show that the Hobbs Act does not

proscribe acts or threats of physical violence except to further

a planned or intended robbery or extortion. That conciusion

accords with the longstanding view of the United States.

A. The Text Of The Hobbs Act Requires The Prohibited

Physical Violence To Be In Furtherance Of A Planned

Or Intended Robbery Or Extortion

1. Section 1951(a)’s introductory clause imposes criminal

penalties on any person who “in any way or degree obstructs,

delays, or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or attempts

or conspires so to do.” 18 U.S.C. 1951(a) (emphasis added).

No offense is committed under that clause unless the person

engages in a robbery or an extortion, or attempts or conspires

to commit one of those offenses.

The next clause of Section 1951(a) imposes criminal penal-

ties on any person who “commits or threatens physical vio-

lence to any person or property in furtherance of a plan or

purpose to do anything in violation of this section.” 18 U.S.C.

1951(a). That text unambiguously refers to the criminal pro-

hibitions in the prior clause. The physical violence clause thus

requires that the defendant interfere with commerce by

threatening or committing physical violence in furtherance of

a robbery or extortion, an attempted robbery or extortion, or

a conspiracy to commit robbery or extortion.

In the court of appeals’ view, the statute may be read to

proscribe acts or threats of violence that are unconnected to

any actual or planned robbery or extortion. 04-1244 Pet. App.

8a, 12a-15a. That conclusion, however, ignores the statute’s

clear requirement that the defendant engage in acts or

threats of physical violence “in furtherance of a plan or pur-

pose to do anything in violation of this section.” As dis-

cussed, the Hobbs Act in the preceding clause prohibits only

9

robbery and extortion, and related attempts and conspiracies.

The Act accordingly cannot be read to contain a free-standing

and independent offense of physical violence that obstructs,

delays, or affects commerce.

2. As the court of appeals observed (04-1244 Pet. App. 9a),

the Court in Stirone v. United States, 361 U.S. 212 (1960),

described the Hobbs Act as “speak[ing] in broad language,

manifesting a purpose to use all the constitutional power Con-

gress has to punish interference with interstate commerce by

extortion, robbery or physical violence.” Id. at 215 (emphasis

added). The Court made that statement, however, only in the

context of discussing the requisite degree of interference with

interstate commerce. See Scheidler vy. NOW, 537 U.S. at 408-

409. Thus, the reference to “physical violence” in the quoted

passage from Stirone is properly read as a shorthand refer-

ence to the entirety of the statutory text in the latter portion

of 18 U.S.C. 1951(a), which makes clear that the “physical

violence” targets by the Hobbs Act must be “in furtherance of

a plan or purpose to do anything in violation of this section”

~ .e., in furtherance of robbery or extortion or an attempt or

conspiracy to commit robbery or extortion. Indeed, the Court

elsewhere has indicated its understanding that the Hobbs Act

prohibits only those acts that are linked to robbery or extor-

tion. See Scheidler v. NOW, 537 U.S. at 407 (explaining that

Congress in the Hobbs Act “prohibited interference with com-

merce by ‘robbery or extortion’”); United States v. Culbert,

435 U.S. 371, 377 (1978) (describing Act’s “specific prohibi-

tions against robbery and extortion”).

To read the Hobbs Act as containing an independent pro-

hibition against acts or threats of violence in connection with

interstate commerce would effectively overruie two of this

Court’s decisions interpreting the Hobbs Act, Scheidler v.

NOW, supra, and United States v. Enmons, 410 U.S. 396

(1973). Those decisions involved the meaning of “extortion”

10

under the Hobbs Act, which requires that the defendant both

“obtain|]” property and that the acts or threats of violence be

“wrongful.” 18 U.S.C. 1951(b)(2); ef. 18 U.S.C. 1951(b)(1) (de-

fining “robbery” to mean the “unlawful taking or obtaining of

personal property”). This Court in Scheidler v. NOW, 537

U.S. at 405, held that petitioners did not “obtain” anything by

their acts and threats of violence in their efforts to shut down

the abortion clinics. The Court relied in part on the fact that

Congress in the Hobbs Act omitted the New York crime of

coercion, which does not require defendants to obtain any-

thing but criminalizes violence in their efforts to alter an-

other's conduct. /d. at 405-406. Reading the Hobbs Act to

criminalize petitioners’ violence independent of extortion (and

therefore independent of the Act’s “obtaining” requirement)

would render the Court's holding in Scheidler v. NOW a dead

letter.

The same is true of this Court's decision in United States

v. Enmons, where the Court held that labor union members

and officials who committed acts of violence did not commit

extortion under the Hobbs Act because their violence in fur-

therance of legitimate labor activities was not “wrongful.” 410

U.S. at 399. In that case, the defendants conspired to obtain

for striking employees higher wages and other employment

benefits from an employer, a utility company. In furtherance

of that conspiracy, the defendant fired high-powered rifles at

three company transformers, drained oil from a company

transformer, and blew up a company transformer substation.

Id. at 398. Were the Hobbs Act to penalize violence that af-

fected interstate commerce independent of extortion and its

wrongfulness element, the violent activities in furtherance of

higher wages and benefits at issue in Enmons would have

constituted Hobbs Act violations. The highly anomalous re-

sults produced by such an interpretation of the Act strongly

1]

suggest that the Hobbs Act does not criminalize conduct that

is not linked to robbery or extortion.

3. The court of appeals also suggested that respondents’

reading of the Hobbs Act may be necessary to give the physi-

cal violence clause independent meaning. The court of ap-

peals reasoned that physical violence in furtherance of a plan

or purpose to commit robbery or extortion would presumably

“already fall within the definitions of robbery, extortion, or

attempts or conspiracies to rob or extort.” 04-1244 Pet. App.

14a. But Congress could rationally have enacted the physical

violence clause to serve a function similar to that of the incho-

ate crimes of attempt and conspiracy, i.e. “as a basis for pre-

ventive intervention by the agencies of law enforcement and

for the corrective treatment of persons who reveal that they

are disposed to criminality.” Herbert Wechsler et al., The

Treatment of Inchoate Crimes in the Model Penal Code of the

American Law Institute: Attempt, Solicitation, und Conspir-

acy, 61 Colum. L. Rev. 957, 959 (1961). Viewed in that light,

the physical violence clause “reach[es] physical violence de-

signed to culminate in extortion [or robbery], even if the

scheme aborts prior to extortion [or robbery].” United States

v. Franks, 511 F.2d 25, 31 (6th Cir.), cert. denied, 422 U.S.

1042 (1975).

The clause also may be read to cover physical violence

taken in furtherance of robbery or extortion, but where the

government has insufficient proof of an attempt or a conspir-

acy. For instance, a defendant may commit or threaten physi-

cal violence to further an extortion conspiracy but the govern-

ment may lack sufficient proof that the defendant agreed to

join the conspiracy. Similarly, Congress may have wanted to

reach a defendant who threatened physical violence to further

an uncompleted robbery or extortion but there is doubt

whether the defendant had yet embarked upon an attempt.

Cf. United States v. Dworken, 855 F.2d 12, 16 (ist Cir. 1988)

12

(“The invariably elusive nature of what constitutes an ‘at-

tempt’ has long been the subject of judicial chagrin.”).

The court of appeals acknowledged that the physical vio-

lence clause might cover some conduct that was not already

covered under the preceding clause of the Act, but the court

thought it “unlikely that Congress included the ‘violence’ lan-

guage to capture such a tiny set of academic hypotheticals.”

04-1244 Pet. App. 14a. Congress presumably was concerned,

however, with ensuring complete coverage under the Act,

particularly where robbery or extortion plans turned violent.

As the court of appeals acknowledged, when initially enacted

in 1946, the Hobbs Act “explicitly linked the ‘acts of physical

violence’ clause to the prohibition on robbery and extortion.”

Id. at 15a (citing Pub. L. No. 486, 60 Stat. 420 (1946)). The

original Act’s physical violence clause thus applied to “aca-

demic hypotheticals,” such as a defendant who threatens or

agrees to use physical force to commit a robbery even though

such conduct was separately prohibited under the statute’s

prohibitions of attempts and conspiracies. See pp. 14-15, in-

fra,

Congress also employed a similar overlapping phrase that

criminalized physical violence in furtherance of an extortion

or exaction of property in the Hobbs Act’s predecessor, the

Anti-Racketeering Act of 1934. Ch. 569, § 2(c), 48 Stat. 979-

980; see pp. 13-14, infra. Accordingly, the history of the stat-

ute shows that Congress separately prohibited physical vio-

lence in furtherance of other prohibited acts in order to en-

sure that the statute captured dangerous conduct even when

the underlying substantive offense was not yet complete.

In any event, even were the physical violence clause, as a

practical matter, largely superfluous, that fact would not jus-

tify the creation of an offense that is not supported by any

language in the Hobbs Act. As this Court has explained,

“{s]urplusage does not always produce ambiguity and [the

13

Court’s] preference for avoiding surplusage constructions is

not absolute.” Lamie v. United States Trs., 540 U.S. 526, 536

(2004). If the only way to give meaning to such surplusage

would be to contradict the plain meaning of the language that

Congress used in the statute, the correct course is to “prefer

the plain meaning.” /bid; accord Chickasaw Nation v. United

States, 534 U.S. 84, 94 (2001).'

B. The Hobbs Act’s History Confirms That The Hobbs Act

Does Not Contain A Free-standing Prohibition On Vio-

lence That Obstructs, Delays, Or Affects Commerce

The history of the Hobbs Act reflects Congress’s intent to

proscribe physical violence in connection with interstate com-

merce only when connected to an actual or intended robbery

or extortion. The statutory antecedents to Section 1951(a)

expressly linked the prohibited physical violence to robbery

or extortion, and there is no evidence that Congress, when it

recodified that prohibition in Section 1951(a) in 1948, intended

to create a wholly independent prohibition against violence.

' The same principle precludes any reliance on the title of the Hobbs Act,

“Interference with commerce by threats or violence.” A statutory title is

relevant only to resolve an ambiguous phrase or word in the statute itself.

Carter v. United States, 5380 U.S. 255, 267 (2000); Pennsylvania Dep't of Corrs.

v. Yeskey, 524 U.S. 206, 212 (1998); Trainmmen v. Baltimore & Ohio R.R., 331

U.S. 519, 528-529 (1947). A clear statutory text thus “eliminates the

interpretive role of the title.” Whitman v. American Trucking Ass'ns, 531

U.S. 457, 484 (2001); accord Caminetti v. United States, 242 U.S. 470, 490

(1917). Similarly, because the plain text of the Hobbs Act criminalizes violence

only when connected to a robbery or extortion, the Court need not resort to the

rule of lenity or other principles of statutory construction that might otherwise

support a narrow reading of the Hobbs Act. See, e.g., Salinas v. l/nited States,

522 U.S. 52, 66 (1997); Bates v. United States, 522 U.S. 23, 32 (1997); ef. United

States v. Enmons, 410 U.S. at 411 (invoking rule of lenity and need to avoid “an

unprecedented incursion into the criminal jurisdiction of the States” on the

assumption that “the language and history of the Act were less clear”).

14 -

1. The Hobbs Act’s predecessor is Section 2 of the Anti-

Racketeering Act of 1934. Scheidler v. NOW, 537 U.S. at 406;

Evans v. United States, 504 U.S. 255, 261 (1992); United

States v. Culbert, 435 U.S. at 374; United States v. Enmons,

410 U.S. at 401. The 1934 Act contained no free-standing pro-

hibition on physical violence in connection with interstate

commerce. Rather, Section 2(c) of that Act imposed criminal

penalties on any person who, in connection with interstate

commerce, “{c]ommits or threatens to commit an act of physi-

cal violence or physical injury to a person or property in fur-

therance of a plan or purpose to violate sections (a) or (b).”

48 Stat. 980 (emphasis added). Sections 2(a) and (b) in turn

applied to any person who engaged in extortion or who, by

force, violence, or coercion, obtained or attempted to obtain

the payment of money or other valuable consideration “not

including * * * the payment of wages by a bona-fide em-

ployer to a bona-fide employee.” 48 Stat. 980. Accordingly,

the 1934 Act made it a crime to engage in violence that af-

fected interstate commerce, but only when the defendant in-

tended to violate the specific prohibitions in the Act on extor-

tion and the exaction of property that did not qualify under

the wage exception.

2. In 1946, Congress passed the Hobbs Act as an amend-

ment to the 1934 Act. Pub. L. No. 486, ch. 537, 60 Stat. 420;

Evans v. United States, 504 U.S. at 261. The “narrow pur-

pose” of the Hobbs Act was to overrule this Court’s holding in

United States v. Teamsters, 315 U.S. 521 (1942), that the wage

exception in the 1934 Act covered union members who used

violence to exact wage payments for superfluous and un-

wanted services. United States v. Enmons, 410 U.S. at 402;

Scheidler v. NOW, 537 U.S. at 407; Evans v. United States,

504 U.S. at 262; see also 91 Cong. Rec. 11,900 (1945) (state-

ment of Rep. Hancock) (“This bill is designed simply to pre-

vent both union members and nonunion people from making

15

use of robbery and extortion under the guise of obtaining

wages in the obstruction of interstate commerce. That is all

it does.”). Thus, “(t]he bill that eventually became the Hobbs

Act deleted the exception on which the Court had relied in

Teamsters and substituted specific prohibitions against rob-

bery and extortion for the Anti-Racketeering Act’s language.”

United States v. Culbert, 435 U.S. at 377.

Accordingly, when Congress passed the Hobbs Act in

1946, it did not create a novel federal crime of physical vio-

lence. Section 1 of the Hobbs Act defined the terms “com-

merce,” “robbery,” and “extortion.” 60 Stat. 420. Section 2

provided that “[w]hoever in any way or degree, obstructs,

delays, or affects commerce, or the movement of any article

or commodity in commerce, by robbery or extortion shall be

guilty of a felony.” /bid. (emphasis added). The succeeding

sections then set forth separate criminal prohibitions covering

conspiracies, attempts, and violence in furtherance of a reb-

bery or extortion. Thus, Section 3 applied to “[w]hoever con-

spires with another or with others, or acts in concert with

another or with others to do anything in violation of section

2,” and Section 4 applied to “[wJhoever attempts or partici-

pates in an attempt to do anything in violation of section 2.”

Ibid. As particularly relevant here, Section 5 applied to

“[w]hoever commits or threatens physical violence to any

person or property in furtherance of a plan or purpose to do

anything in violation of section 2.” Ibid. (emphasis added).

The Hobbs Act thus unambiguously linked the prohibitions on

physical violence to the robbery or extortion that Congress

had criminalized under Section 2.

Not surprisingly, there is no mention in the Hobbs Act’s

history of an intent to create a new federal crime of physical

violence in connection with interstate commerce. To the con-

trary, the history reflects congressional intent to proscribe

only robbery and extortion. See, e.g., H.R. Rep. No. 238, 79th

16

Cong., Ist Sess. 9 (1945) (purpose of the bill is “to prevent

anyone from obstructing, delaying, or affecting commerce, or

the movement of any article or commodity in commerce by

robbery or extortion as defined in the bill”) (emphasis added);

S. Rep. No. 1516, 79th Cong., 2d Sess. 1 (1946) (same). As the

sponsor of the Act, Representative Hobbs, concisely de-

scribed the bill that became the Hobbs Act:

This bill is grounded on the bedrock principle that

crime is crime, no matter who commits it; and that

robbery is robbery and extortion extortion, whether or

not the perpetrator has a union card. It covers who-

ever in any way or degree interferes with interstate or

foreign commerce by robbery or extortion.

89 Cong. Rec. 3217 (1943) (emphasis added).

The Court has observed that Congress intended that the

Hobbs Act “be clear about what conduct was prohibited.”

Scheidler v. NOW, 537 U.S. at 407 (quoting United States v.

Culbert, 435 U.S. at 378). Toward that end, Congress pro-

scribed extortion and robbery since “[e]verybody knows what

they mean.” /d. at 407 n.12 (quoting 91 Cong. Rec. at 11,912

(statement of Rep. Hobbs)). The Hobbs Act likew’se “care-

fully defines its key terms, such as ‘robbery,’ ‘extortion,’ and

‘commerce.’” Jd. at 407 (quoting United States v. Culbert, 435

U.S. at 373). Given the precision with which Congress drafted

the Act, “[i}t is inconceivable that, at the same time Congress

was so concerned about clearly defining the acts prohibited

under the bill,” United States v. Culbert, 435 U.S. at 378, it

intended to create a novel crime of physical violence.

3. As part of Congress’s 1948 revision of the Criminal

Code, the Hobbs Act was revised and codified as Section 1951

of Title 18. Act of June 25, 1948, ch. 645, Pt. 1, § 1951, 62 Stat.

793-794. As the court of appeals acknowledged, the 1948

changes to the Hobbs Act “were intended to be formal, stylis-

17

tic changes.” 04-1244 Pet. App. 15a. That point is made ex-

plicit by the Reviser’s Notes accompanying the 1948 revision,

which were intended to “explain{] in detail the revision of each

section of the Federal Criminal laws.” H.R. Rep. No. 304,

80th Cong., Ist Sess., Al (1947); Muniz v. Hoffman, 422 U.S.

4u4, 469 (1975) (“Revisions in the law were carefully explained

in a series of Reviser’s Notes printed in the House Report.”)

(footnote omitted).

As discussed, Congress passed the Hobbs Act as an

amendment to the Anti-Racketeering Act of 1934. See p. 14,

supra. In the 1948 revision of the Criminal Code, Congress

repealed the 1934 Act, and revised the Hobbs Act as Section

1951. 62 Stat. 793-794 (enactment of Section 1951), 866 (re-

peal of Act of June 18, 1934, ch. 569, 48 Stat. 979, 980). The

Reviser’s Notes thus explain that Section 1951 consolidated

the 1934 Act “with changes in phraseology and arrangement

necessary to effect consolidation.” H.R. Rep. No. 304, supra,

at A131.

That history is consistent with Congress’s general intent

in the 1948 revision of the Criminal Code. “{A]s the Senate

Report of that legislation made clear, ‘[t]he original intent of

Congress is preserved’” in the 1948 revision. Muniz v.

Hoffman, 422 U.S. at 469 (quoting S. Rep. No. 1620, 80th

Cong., 2d Sess. 1 (1948)). Similarly, “{t}he House Report

stated that ‘[rJevision * * * meant the substitution of plain

language for awkward terms, reconciliation of conflicting

laws, omission of superseded sections, and consolidation of

similar provisions.’” /bid. (quoting H.R. Rep. No. 304, supra,

at 2). Based on thet history, this Court has refused to read

the 1948 revisions to the Criminal Code as bringing about

significant changes without an expression of congressional

intent in the text itself. FCC v. Pacifica Found., 438 U.S. 726,

738 (1978); Muniz v. Hoffman, 422 U.S. at 468-469; cf. United

States v. Wells, 519 U.S. 482, 497 (1997) (Reviser’s Notes may

18

not “muddy the ostensibly unambiguous provision of the stat-

ute as enacted by Congress”). The history of Section 1951

therefore confirms the conclusion compelled by the plain text:

the prohibited physical violence must be linked to an intended

robbery or extortion.

C. Criminal Liability Has Never Been Imposed Under The

Hobbs Act For Violence Independent Of An Intended

Robbery Or Extortion

In light of the text and history of the Hobbs Act, it has

long been the view of the United States that the Hobbs Act

proscribes physical violence only when linked to a planned or

intended robbery or extortion. In examining the bill that be-

came the Hobbs Act, the Attorney General in 1946 described

the bill as “making it a Federal offense to interfere with or

impede the free flow of interstate commerce by robbery or

extortion.” App., infra, 7a (Letter from the Attorney General

to Hon. Paal H. Appleby, Acting Director, Bureau of the Bud-

get (June 27, 1946) (emphasis added)). That view subse-

quently was reflected in official policy statements that guided

criminal prosecutions by the United States under the Hobbs

Act. A Department of Justice handbook issued in 1965 stated:

The Hobbs Act requires that the prohibited impact

upon commerce be effected by robbery, or extortion.

In addition, the act makes a crime of the commission

or the threatened commission of “physical violence to

any person or property in furtherance of a plan or pur-

pose to do anything in violation of this section.” How-

ever, this language obviously relates back to a plan or

purpose to rob or to extort.

Department of Justice, Handbook for Prosecution of Racke-

teers, I11(b)-(3) (Apr. 30, 1965) (emphasis added); accord 10

Department of Justice, United States Attorneys’ Manual § 9-

131.220, Ch. 131, 37 (May &, 1984) (The Hobbs Act “does not

19

make criminal the act of obstructing commerce by actual or

threatened violence in the absence of a purpose or plan to rob

or extort.”). And it remains the position of the United States

that “[t]he statutory prohibition of ‘physical violence to any

person or property in furtherance of a plan or purpose to do

anything in violation of this section’ is confined to violence for

the purpose of committing robbery or extortion.” Depart-

ment of Justice, Criminal Resource Manual § 2402 (1997).

The United States is aware of only two reported attempts

by federal prosecutors to advance the view that the Hobbs Act

contains a free-standing prohibition against violence that af-

fects interstate commerce. In both instances, the court of

appeals summarily rejected the prosecutor's novel reading of

the Act. United States v. Yankowski, 184 F.3d 1071 (9th Cir.

1999); United States v. Franks, supra. Indeed, in the Hobbs

Act’s 59-year history, the Hobbs Act apparently has never

resulted in criminal punishment for physical violence that did

not further an intended robbery or extortion. It is exceed-

ingly “unlikely that if Congress had indeed wrought such a

major expansion of federal criminal jurisdiction in enacting

the Hobbs Act, its action would have so long passed unob-

served.” United States v. Enmons, 410 U.S. at 410.

Il. RICO DOES NOT AUTHORIZE A PRIVATE CAUSE OF

ACTION FOR INJUNCTIVE RELIEF

A. RICO’s Text And Structure Vest Exclusive Authority In

The Attorney General To Sue For Equitable Relief

RICO’s civil remedies provision, 18 U.S.C. 1964, autho-

rizes two causes of action: a public enforcement action for

equitable relief by the Attorney General and a treble damages

action by private parties. The Attorney General’s right to sue

for equitable relief derives from Section 1964(a) and (b), and

those provisions, in combination, make the Attorney General’s

right exclusive.

20

1. Section 1964(a) grants district courts “jurisdiction to

prevent and restrain violations” of RICO by issuing the full

range of “appropriate orders” available to courts of equity. 18

U.S.C. 1964(a). Section 1964(a) does not identify who can seek

such relief, but Section 1964(b) does. That provision states

that “[t}he Attorney General may institute proceedings under

this section” and that, “[pJending final determination there- —

of,” the court may enter interim restraining orders or take

such other actions as it shall deem proper. 18 U.S.C. 1964(b).

By empowering the Attorney General to institute proceed-

ings “under this section,” Congress signaled its intent that the

district court’s equitable jurisdiction under Section 1964(a)

must be invoked by the Attorney General. Congress further

manifested its intent that the Attorney General alone may

seek equitable relief by providing in subsection (b) that tem-

porary equitable relief may be awarded “[pJending final deter-

mination” of a proceeding instituted by the Attorney General

for permanent equitable relief. There is no corresponding

provision that authorizes a private party to institute proceed-

ings “under this section” or to seek temporary equitable relief

pending final disposition of a claim. Under Section 1964(a)

and (b), therefore, the sole power to seek final and interim

equitable relief against racketeering activities and enterprises

is reposed in the Attorney General.

Rather than authorize private civil RICO plaintiffs to seek

equitable remedies, Congress in Section 1964(c) granted pri-

vate parties the right to bring suit to recover treble damages

and attorney’s fees. Section 1964(c) provides that “[a]ny per-

son injured in his business or property by reason of a [RICO]

violation * * * may sue * * * and shall recover threefold

the damages he sustains and the cost of the suit, including a

reasonable attorney’s fee.” 18 U.S.C. 1964(¢c). That provision

has been construed to authorize private parties, and not the

government, to seek treble damages. United States v.

21

Bonanno, 879 F.2d 20, 22-24 (2d Cir. 1989) (reasoning that the

United States is not a “person” under Section 1964(c)); see

also Sedima, S.P.R.1. v. Imrex Co., 473 US. 479, 487 (1985)

(observing that Section 1964(c) creates “a private treble-dam-

ages action”).

Section 1964’s “inclusion of a single statutory reference to

private plaintiffs, and the identification of a damages and fees

remedy for such plaintiffs in [Section 1964(c)], logically car-

ries the negative implication that no other remedy was in-

tended to be conferred on private plaintiffs.” Religious Tech.

Ctr. v. Wollersheim, 796 F.2d 1076, 1083 (9th Cir. 1986), cert.

denied, 479 U.S. 1103 (1987). Coupled with the fact that Con-

gress in Section 1964(b) explicitly authorized the Attorney

General to initiate proceedings to obtain equitable relief un-

der Section 1964(a), but did not similarly grant private parties

that right, the statute makes it clear that Congress did not

authorize private parties to bring actions for equitable relief.

2. In concluding otherwise, the Seventh Circuit reasoned:

Given that the government's authority to seek injunc-

tions comes from the combination of the grant of a

right of action to the Attorney General in § 1964(b)

and the grant of district court authority to enter in-

a junctions in § 1964(a), we see no reason not to con-

clude, by parity of reasoning, that private parties can

also seek injunctions under the combination of grants

in §§ 1964(a) and (c).

04-1244 Pet. App. 38a. That analysis is flawed, because Sec-

tion 1964(c)’s grant of a private treble damages action is not

parallel to Section 1964(b)’s grant of authority to the Attorney

General to file an equitable action. As explained above, Sec-

tion 1964(b) expressly grants the Attorney General the right

to bring proceedings under “this section,” an obvious cross-

reference to the court’s power to award equitable relief set

22

forth in the immediately preceding subsection (a). Section

1964(c), by contrast, is an independent, self-contained grant

of a private right to recover treble damages. The provision

contains no express or implied reference to, or incorporation

of, Section 1964(a).

The court of appeals’ interpretation is also undermined by

its recognition (04-1244 Pet. App. 43a) that Section 1964(b)

grants only the government the right to seek preliminary

equitable relief. Under the court of appeals’ reading of the

statute, private parties may seek permanent injunctive relief

but not preliminary relief pending final resolution of their

claims. There is no reason, however, why Congress would

have intended that highly anomalous result. Rather, the logi-

cal interpretation of the statute is that Congress created a

symmetrical statutory scheme under which the Attorney Gen-

eral may seek temporary and final equitable relief, and pri-

vate parties may seek treble damages.

B. A Comparison With The Antitrust Laws Shows That

Congress Did Not Create A Private Injunctive Action

The statutory language that forms the closest antecedent

for the private remedial provision in RICO is found in the

antitrust laws. At a time when Congress had provided no ex-

press authority for private antitrust plaintiffs to seek equita-

ble relief, the antitrust laws were construed to preclude such

relief. The parallels between the antitrust laws at that time

and the language of RICO support the same conclusion here

—particularly since RICO lacks the explicit provision for pri-

vate injunctive relief that Congress added to the antitrust

laws. RICO’s legislative history reveals that the statute’s

omission of authority for private RICO plaintiffs to seek equi-

table relief was deliberate.

1. As this Court has explained, “{a] treble-damages rem-

edy for persons injured by antitrust violations was first pro-

23

vided in § 7 of the Sherman Act and was re-enacted in 1914

without substantial change as § 4 of the Clayton Act.” Pfizer,

Inc. v. India, 434 U.S. 308, 311 (1978); accord Holmes v. Secu-

rities Investor Prot. Corp., 503 U.S. 258, 267 n.13 (1992);

Texas Indus., Inc. v. Radcliff Materials, Inc., 451 US. 630,

644 n.16 (1981).* Section 4 of the Sherman Act also authorized

courts to issue equitable relief in actions brought by the

United States. 26 Stat. 209-210.* This Court repeatedly rec-

ognized that those provisions of the Sherman Act did not au-

thorize private parties to bring suit for injunctive relief.’ Pri-

vate parties were not authorized to seek injunctive relief for

violations of the antitrust laws until Congress passed Section

16 of the Clayton Act (15 U.S.C. 26) explicitly authorizing

such a right. California v. American Stores Co., 495 U.S. 27 1,

287 (1990) (Ҥ 4 of the Sherman Act, which authorizes equita-

Section 7 of the Sherman Act provided that “|aJny person who shall be

injured in his business or property * * * by reason of anything forbidden or

declared to be unlawful by this act|] may sue therefor * * * and shall recover

three fold the damages by him sustained, and the cost of suit, including a

reasonable attorney's fee.” 26 Stat. 210.

* Section 4 of the Sherman Act provided:

The several circuit courts of the United States are hereby invested with

jurisdiction to prevent and restrain violations of this act; and it shall be

the duty of the several district attorneys of the United States, in their

respective districts, under the direction of the Attorney-General, to

institute proceedings in equity to prevent and restrain such violations.

*** [Plending |a| petition and before final decree, the court may at any

time make such temporary restraining order or prohibition as shall be

deemed just in the premises.”

26 Stat. 209-210.

* General Inv. Co. v. Lake Shore & Mich. 8. Ry., 260 U.S. 261, 286 (1922);

Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 593 (1921); Paine

Lumber Co. v. Neal, 244 U.S. 459, 471 (1917); D.R. Wilder Mfg. Co. v. Corn

Prods. Ref. Co., 236 U.S. 165, 174 (1915); Minnesota v. Northern Sec. Co., 194

U.S. 48, 70-71 (1904).

. 24

ble relief in actions brought by the United States, was reen-

acted as § 15 of the Clayton Act, while § 16 filled a gap in the

Sherman Act by authorizing equitable relief in private ac-

tions.”); accord General Inv. Co. v. Lake Shore & Mich. S.

Ry., 260 U.S. 261, 287 (1922).

The Sherman Act thus “envisaged two classes of ac-

tions,—those made available only to the Government, * * *

and, in addition, a right of action for treble damages granted

to redress private injury.” United States v. Cooper Corp., 312

U.S. 600, 608 (1941) (holding that the United States may not

recover treble damages under the Sherman Act). The Court

reached that conclusion despite the fact “that there are no

words of express exclusion of the right of individuals to act in

the enforcement of the statute, or of courts generally to enter-

tain complaints on that subject.” D.R. Wilder Mfg. Co. v.

Corn Prods. Ref. Co., 236 U.S. 165, 174 (1915). The Court

explained that “such exclusion must be implied * * * be-

cause of the familiar doctrine that ‘where a statute creates a

new offense and denounces the penalty, or gives a new right

and declares the remedy, the punishment or the remedy can

be only that which the statute prescribes.’” /d. at 174-175

(quoting Farmers’ & Mechs. Nat'l Bank v. Dearing, 91 U.S.

29, 35 (1875)).”

For those reasons, respondents erred below in relying on courts’ “in-

herent powers to issue injunctions” “absent the clearest congressional com-

mand to the contrary.” Resp. C.A. Br. 39 (citing Califano v. Yamasaki, 442

U.S. 682, 705 (1979)). That presumption is inapplicable here, where Congress

passed RICO against the backdrop of this Court's Sherman Act decisions that

held that courts had no authority to award injunctive relief to private parties

despite any “words of express exclusion” of that authority. D.R. Wilder Mfg.

Co., 236 U.S. at 174. In any event, the issue in this case is not whether courts

have “inherent powers to issue injunctions.” Section 1964(a) confers on district

courts the erpress power to grant equitable relief, and that grant of authority

encompasses the full range of equitable powers available to a court. See

Portery. Warner Holding Co. 328 U.S. 395 (1946); Mitchell v. Robert DeMario

25

Although the Sherman Act authorizes suits in equity in

one paragraph (Section 4), while RICO does so in two para-

graphs (Section 1964(a) and (b)), the statutes are parallel in

the critical respects here. First, both confer on courts “juris-

diction” to prevent and restrain violations through permanent

and preliminary equitable relief, but expressly authorize only

the Attorney General to seek such relief. Second, both pro-

vide private parties a separate right to recover treble dam-

ages and attorney’s fees, but no other forms of relief. In light

of this Court’s precedents construing the Sherman Act, Con-

gress is presumed to be aware when it enacted RICO that,

absent inclusion of an express private right to obtain injunc-

tive relief, the language it selected would be construed to ex-

clude such a right. Holmes, 503 U.S. at 268 (construing the

term “by reason of” in Section 1964(c) and observing that the

Court “may fairly credit the 91st Congress, which enacted

RICO, with knowing the interpretation federal courts had

given the words earlier Congresses had used first in § 7 of the

Sherman Act, and later in the Clayton Act’s § 4”).

Indeed, to authorize private antitrust plaintiffs to seek

equitable relief, Congress enacted a separate section of the

Clayton Act, Section 16. RICO, however, lacks any provision

comparable to Section 16 of the Clayton Act. The court of

appeals thus erred in suggesting that RICO in Section 1964

contains the same remedies as the Clayton Act, including Sec-

tion 16. 04-1244 Pet. App. 42a-43a. Section 16 expressly pro-

vides that private persons “shall be entitled to sue for and

have injunctive relief.” 15 U.S.C. 26. Juxtaposed with Con-

Jewelry, Inc., 361 U.S. 288 (1960); but see United States v. Philip Morris USA,

!nc., 396 F.3d 1190 (D.C. Cir. 2005) (denying availability of disgorgement under

RICO), petition for cert. pending, No. 05-92 (filed July 18, 2005). RICO does

not, however, confer standing on private parties to invoke such a power.

Rather, Section 1964 gives only the Attorney General the authority to institute

proceedings seeking equitable relief.

26

gress's explicit modeling of RICO’s private treble damages

provision “on the civil-action provision of the federal antitrust

laws, § 4 of the Clayton Act,” Holmes, 503 U.S. 267, the ab-

sence of a counterpart to Section 16 makes clear that Con-

gress did not intend to create a private right to equitable re-

lief under RICO.

2. The legislative history of RICO confirms that Congress

made a deliberate choice in omitting authority for a private

injunctive action. “The civil remedies in the bill passed by the

Senate, 8.30, were limited to injunctive actions by the United

States and became §§ 1964(a), (b), and (d).” Sedima, 473 U.S.

at 486-487; Agency Holding Corp. v. Malley-Duff & Assoc.,

483 U.S. 143, 152 (1987) (same). “During hearings on S. 30

before the House Judiciary Committee, Representative

Steiger proposed the addition of a private-treble damages

action” that was modeled after Section 4 of the Clayton Act.

Sedima, 473 U.S. at 487. That amendment also would have

authorized private parties to seek injunctive relief and the

government to seek damages, as well as making other proce-

dural changes. 116 Cong. Rec. 27,739 (1970). When the Judi-

ciary Committee responded by passing only the private treble

damages provision, Representative Steiger complained that

the bill did “not do the whole job,” since it “fail[ed] to provide

* * * two important substantive remedies included in the

Clayton Act: compensatory damages to the United States

when it is injured in its business or property, and equitable

relief in suits brought by private citizens.” Id. at 35,227,

35,228 (emphasis added).

Representative Steiger subsequently offered another

amendment, again to authorize a private injunctive action and

a public damages action. Sedima, 473 U.S. at 487; 116 Cong.

Rec. 35,228; id. at 35,346. Concerned about “the potential

consequences that this new remedy might have,” Representa-

tive Poff asked Representative Steiger to withdraw the

27

amendment for further study by the Judiciary Committee,

and Representative Steiger agreed. Agency Holding Corp.,

483 U.S. at 154-155 (citing 116 Cong. Rec. at 35,346).

Shortly after RICO was enacted, Senators Hruska and

McClellan, RICO’s sponsors, introduced S. 16, a bill that

again would have authorized damage actions by the United

States and injunctive actions by private persons. Agency

Holding Corp., 483 U.S. at 155 (“[T]he purpose of [S. 16] was

to broaden even further the remedies available under RICO.

In particular, * * * it would have further permitted private

actions for injunctive relief.”). The Senate, but not the House,

passed S. 16, and therefore it never became law. Woller-

sheim, 796 F.2d at 1086.

Congress thus passed RICO without authorizing private

injunctive actions despite repeated attempts to do so, and

despite Congress’s explicit grant of such a right in Section 16

of the Clayton Act. Congress shortly thereafter rejected an

amendment to RICO that would have added such a right. The

clear conclusion to be drawn from the legislative history is

that, consistent with RICO’s text, Congress intended to cre-

ate a private right of action only for treble damages.°

C. Policy Considerations Do Not Support A Private Right

To Injunctive Relief Under RICO

The purposes underlying RICO are fully consistent with

limiting equitable actions to suits brought by the Attorney

General. RICO was designed “to provide new weapons of

unprecedented scope for an assault on organized crime and its

* The court of appeals erred in relying (see 04-1244 Pet. App. 39a-40a)

on Congress’s directive that RICO should be “liberally” construed. See

Organized Crime Control Aet of 1970, Pub. L. No. 91-452, Tit. IX, § 904(a), 84

Stat. 947. That provision cannot be invoked to overcome the text, structure,

and legislative history of Section 1964, which affirmatively foreclose a private

action for injunctive relief.

28

economic roots.” Russello v. United States, 464 U.S. 16, 26

(1983). To eradicate that sustained criminal conduct, Con-

gress expressly authorized district courts to enter wide-rang-

ing equitable relief, including divestiture and corporate reor-

ganization and dissolution. United States v. Turkette, 452

U.S. 576, 585 (1981). Corporate dissolution, however, is “a

judgment of corporate death, which represent|s] the extreme

rigor of the law.” California v. American Stores Co., 495 U.S.

at 289 (internal quotation marks and ellipses omitted). It is

therefore not surprising that Congress entrusted the Attor-

ney General, acting with “official unity of initiative,” with the

exclusive authority to obtain such relief. D.R. Wilder Mfg.

Co., 236 U.S. at 174. As this Court explained in discussing the

Sherman Act, Congress wanted to “confine the right to ques-

tion the legal existence of a corporation * * * to public au-

thority sanctioned by the sense of public responsibility and

not to leave it to individual action prompted it may be by

purely selfish motives.” Jd. at 176.

It is neither necessary nor appropriate to construe RICO

implicitly to place those same remedies in private hands.

Congress explicitly authorized a private right of action for

damages under RICO and provided for a treble damages rem-

edy as a deterrent against future harm. In particular con-

texts when Congress has wished to go further and authorize

private injunctive relief for a new statutory right, it has so

provided. For instance, although the conduct at issue here

pre-dates the Freedom of Accesz to Clinic Entrances Act of

1994, Pub. L. No. 103-259, § 3, 108 Stat. 694, that Act ex-

pressly provides for suits by private persons to obtain tempo-

rary and permanent injunctive relief against threats or acts

of force that interfere with the obtaining or providing of abor-

tion services. 18 U.S.C. 248(a) and (¢)(1)(B).

29

CONCLUSION

The judgment of the court of appeals remanding the case

to the trial court should be reversed.

Respectfully submitted.

EDWIN S. KNEEDLER’

Acting Solicitor General

JOHN C. RICHTER

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISA S. BLATT

Assistant to the Solicitor

General

KATHLEEN A. FELTON

FRANK MARINE

Attorneys

SEPTEMBER 2005

* The Solicitor General is recused in this case.

APPENDIX A

June 27, 1946

Honorable Paul H. Appleby

Acting Director

Bureau of the Budget

Washington, D.C.

My dear Mr. Appleby:

In compliance with your request of June 24, 1946, I have

examined the facsimile of the bill (H.R. 32) which is before

you in enrolled form. “To amend the Act entitled ‘An Act to

protect trade and commerce against interference by vio-

lence, threats, coercion, or intimidation’, approved June 18,

1934.”

Under existing law (18 U.S.C. 420a-420e), it is a criminal

offense for any person, in connection with or in relation to

any act which, in afiy way or degree, affects trade or com-

merce or any article or commodity moving or about to move

in trade or commerce (1) to obtain or attempt to obtain the

payment of money or other valuable consideration or the

purchase or rental of property or protective services by the

use of or the threat to use force, violence or coercion; or

(2) to obtain the property of another with his consent,

induced by wrongful use of force or fear or under color of

official right; or (3) to commit or threaten to commit an act of

physical violence to a person or property in furtherance of a

plan or purpose to violate any of the foregoing prohibitions.

It is expressly provided that the terms “property,” “money,”

or “valuable consideration” shall not be deemed to include

wages paid by a bona fide employer to a bona fide employee.

(la)

2a

The penalty provided by existing law is imprisonment for a

period of from one to ten years or a fine of $10,000, or both.

Prosecutions under existing law may be had only upon the

express direction of the Attorney General and in any district

in which any part of the offense has been committed.

In the case of United States v. Local 807,315 U.S. 521, the

foregoing Act was considered by the Supreme Court. The

Court stated the following to be the facts involved in that

case: That the defendant included in its membership nearly

all of the motor truck drivers and helpers in the City of New

York; that large quantities of merchandise which went into

the City from neighboring States had been transported in

trucks manned by drivers and helpers who resided in the

localities from which the shipments were made and who

were not members of Local 807; that it had formerly been

the practice of these out-of-state drivers to make deliveries

to the warehouses of consignees in New York City and to

pick up other merchandise from New York shippers for

delivery on the return trip to consignees in surrounding

States; that the defendant conspired to use, and did use,

violence and threats to obtain from the owners of these

trucks certain sums of money for each truck entering the

City; that the amounts so obtained were the regular union

rates for a day's work of driving and unloading; that in some

cases the out-of-state driver was compelled to drive the

truck to a point close to the city limits, and then to turn it

over to one of more of the defendant’s members, who would

then drive the truck to its destination, do the unloading, pick

up the merchandise for the return trip and surrender the

truck to the out-of-state driver at the point where they had

taken it over; that in other cases money was demanded and

obtained from the owners, or drivers who rejected offers of

the defendant’s members to do, or help with, the driving or

unloading; and that in other cases the defendant’s members

da

after receiving the money either failed to offer to work or

refused to work when asked to do so by the owners or out-of-

state drivers.

The Court held that as the result of the provision exclud-

ing “the payment of wages by a bona fide employer to a bona

fide employee” contained therein, existing law did not apply

to the foregoing situation, since it merely involved the use or

threat of violence by the defendant for the purpose of

obtaining the opportunity to work for money or for the pur-

pose of obtaining money even though the employers refused

to permit the defendant to work. The Court in so holding

cited as an analogy in support of its position the use of stand-

by musicians, which it said was a well known labor practice.

The Court, in holding that the activities involved in the case

were among those practices of labor unions which did not fall

within the ban of the Anti-Racketeering Act, stated that

“This does not mean that such activities are beyond the

reach of Federal legislative control.”

According to the report of the House Committee on the

Judiciary concerning this legislation (H. Rept. 238, 79th

Cong.), the bill under consideration was introduced to coun-

teract the effect of the foregoing decision. The bill repeals

existing law and provides a substitute therefor. It makes it

a criminal offense punishable by imprisonment for not more

than 20 years or a fine of not more than $10,000, or both, to

obstruct, delay or affect commerce, or the movement of any

article or commodity in commerce by robbery or extortion.

(Sees. 2, 6.)

The term “robbery” is defined as the unlawful taking or

obtaining of personal property from another, against his will,

by means of actual or threatened force, or violence, or fear of

injury, immediate or future, to his person or property, or to

property in his custody or possession, or to the person or

property of a relative or a member of his family or to anyone

da

in his company. (Sec. 1(b).) The term “extortion” is defined

as the obtaining of property from another with his consent,

induced by wrongful use of actual or threatened force,

violence, or fear, or under color of official right. (Sec. 1(c).)

The exception provided in existing law for the payment of

wages by a bona fide employer to a bona fide employee is

repealed as is the prohibition against the commencing of

prosecutions without the express direction of the Attorney

General. Conspiracies, attempts and acts in furtherance of a

plan or purpose to do anything prohibited by the legislation

are also made unlawful. (Secs. 3-5.)

Title I] of the bill expressly states that nothing in the Act

shall be construed to repeal, modify or affect sections 6 and

20 of the Clayton Act (15 U.S.C. 17 and 29 U.S.C. 52), the

Norris-LaGuardia Act (29 U.S.C. 101-115), the Railway

Labor Act (45 U.S.C. 151-188), or the National Labor Rela-

tions Act (29 U.S.C. 151-166).

An almost identical bill (H.R. 653) was introduced in the

Seventh-eighth Congress. Title I of that bill was identical

with Title I of the bill under consideration. Title II of the

earlier bill related to the willful obstruction by force, or

threats of force, of the transportation of troops, munitions or

war supplies during World War II. The provisions contained

in Title II of the bill under consideration were contained in a

proviso to Title II of the earlier bill.

After the bill in the Seventy-eighth Congress was re-

ported by the House Judiciary Committee, Chairman

Sumners of that Committee filed a supplemental report (H.

Rept. 66, Part 2, 78th Cong.) in which he proposed an

amendment making the proviso in Title II a separate title, so

that it would clearly by applicable to the entire measure. In

that supplemental report, Chairman Sunmers stated as

follows:

5a

“It is considered by the committee that the provisions

of title I were not intended to prevent the doing of acts

authorized under the above-mentioned statutes but in

order to remove any question the committee has agreed

to the hereafter-mentioned amendment, which is addi-

tional to the committee amendment contained in the

original report and recommended therein. The proposed

additional amendment is not intended to be interpreted

as authorizing any unlawful acts, particularly those

amounting to robbery or extortion. The need for the

legislation was emphasized by the opinion of the Su-

preme Court in the case of United States v. Local 807

(315 U.S. 521).”

That amendment, which is identical with Title II of the bill

under consideration was adopted and the bill was passed by

the House of Representatives on April 9, 1943.

When the bill under consideration was introduced in the

Seventy-ninth Congress it contained three titles and was

identical with the earlier bill (H.R. 653) as it was passed by

the House of Representatives in the Seventy-eighth Con-

gress. Title II of the bill as introduced was stricken from the

legislation when the bill was passed by the House of Repre-

~ sentatives on December 12, 1945, because the need for it had

ceased to exist, since it was intended to be limited to the

period of World War II. Title III of the bill became Title II.

(91 Cong. Rec. 12102.)

While the bill under consideration was being debated in

the House of Representatives considerable discussion was

devoted to the effect of Title II. Congressman Hobbs, the

author of the bill, made the following observations (91 Cong.

Rec. 12085):

“Title III of the bill (now Title Il) exempts from the

operation of this law any conduct under the antitrust

6a

statutes, under the NLRB Act, under the Norris-

LaGuardia statute, the Railway Labor Act, the Big Four

that have been termed the Magna Carta of labor. * * *

“Let me point out that when you are striking, when you

are picketing, when you are organizing a labor union, or

engaging in any legitimate labor function, then you are

operating under some one of those four laws that are

specifically exempted in this bill by title III (now Title

Il). Aside from that there is absolutely nothing farther

from the mind of any proponent of this bill than to hurt

labor. Did we amend this bill when the Teamsters’

Union struck in Washington? Not at all, no matter how

much it hurt. It was not highway robbery. They were

exercising their legitimate right to strike. The same

thing is true of all the other legitimate activities of

Labor, and I resent just as bitterly as you or anybody

else does the aspersion cast upon organized labor that

robbery and extortion are legitimate activities of orga-

nized labor.”

Congressman Hobbs further remarked that representa-

tives of organized labor appeared before the House Commit-

tee on the Judiciary, of which he is a member, and stated

that organized labor would have no objection to the enact-

ment of a bill outlawing robbery or extortion in interstate

commerce provided the bill preserved the rights of labor

“under the four branches of labor's Magna Carta.” (91 Cong.

Rec. 12096.)

In view, therefore, of the express language of Title II of

the bill and the above-mentioned legislative history, it seems

clear that the measure will not interfere with labor's right to

strike and picket peacefully or to take any other legitimate

and peacefu! concerted action. Moreover, since the Federal

Government is charged by the Constitution with the duty of

Ta

regulating commerce among the states, it does not appear

inappropriate for the Congress to enact legislation making it

a Federal offense to interfere with or impede the free flow of

interstate commerce by robbery or extortion.

In view of the foregoing, I find no objection to the

approval of the bill.

Sincerely yours,

Attorney General

Sa

APPENDIX B

1. Section 1951, of Title 18, U.S.C., provides in

relevant part:

§ 1951. Interference with commerce by threats or

violence

(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or

attempts or conspires so to do, or commits or threatens

physical violence to any person or property in furtherance of

a plan or purpose to do anything in violation of this section

shall be fined under this title or imprisoned not more than

twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful taking or

obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or

threatened force, or violence, or fear of injury, immediate

or future, to his person or property, or property in his

custody or possession, or the person or property of a

relative or member of his family or of anyone in his

company at the time of the taking or obtaining.

(2) The term “extortion” means the obtaining of

property from another, with his consent, induced by

wrongful use of actual or threatened force, violence, or

fear, or under color of official right.

(3) The term “commerce” means commerce within the

District of Columbia, or any Territory or Possession of the

United States; all commerce between any point in a State,

Territory, Possession, or the District of Columbia and any

point outside thereof; all commerce between points within

the same State through any place outside such State; and

a Te

9a

all other commerce over which the United States has

jurisdiction.

* * ke Ke &

2. Section 1964, of Title 18, U.S.C., provides in relevant

part:

§ 1964 Civil remedies

(a) The district courts of the United States shall have

jurisdiction to prevent and restrain violations of Section 1962

of this chapter by issuing appropriate orders, including, but

not limited to: ordering any person to divest himself of any

interest, direct or indirect, in any enterprise; imposing

reasonable restrictions on the future activities or

investments of any person, including, but not limited to,

prohibiting any person from engaging in the same type of

endeavor as the enterprise engaged in, the activities of

which affect interstate or foreign commerce; or ordering

dissolution or reorganization of any enterprise, making due

provision for the rights of innocent persons.

(b) The Attorney General may institute proceedings

under this section. Pending final determination thereof, the

court may at any time enter such restraining orders or

prohibitions, or take such other actions, including the

acceptance of satisfactory performance bonds, as it shall

deem proper.

(ec) Any person injured in his business or property by

reason of a violation of Section 1962 of this chapter may sue

therefor in any appropriate United States district court and

shall recover threefold the damages he sustains and the cost

of the suit, including a reasonable attorney’s fee, except that

10a

no person may rely upon any conduct that would have been

actionable as fraud in the purchase or sale of securities to

establish a violation of Section 1962.

**+ *¢ * &