Petition for Writ of Certiorari — Hoffman v. Eti-Quette Assaf Ltd.

aa

j \

Office Supreme Court, US.

84-1818 FILED

MAY 17 [385

ow ALEXANDER L. STEVAS,

TLERK—

IN THE

Supreme Court of the United States

OcTosBeEeR TERM, 1984

LYNN M. HOFFMAN,

Petitioner,

VS.

ETI-QUETTE ASSAF LTD., ASSAF IMPORTS LTD.,

PINO-FIORI INC., YOSSI ASSAF, JOSEPH CUSATI,

DENNIS DICK, KOBY KALEVKOF, and SHARON

ALEXANDER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GERALD P. DwYER

PauL WALKER

MIcHAEL A. CALANDRA

Dwyer, PELTZ & WALKER

291 Broadway

New York, New York 10007

(212) 349-6775

Counsel for Petitioner

QUESTION PRESENTED

Must a private civil litigant al-

lege and/or prowe prio. 4f'minal convic-

tions for the underlying ¢ eate acts

defined in 18 U.S.C. Pl1SH1(' » sve un-

der 14 U.S.C. §1964(¢) (1970)2

ii

LIST OF PARTIES

All parties appear in the caption

of the case in the Court.

iii

TABLE OF CONTENTS

Page

Guestion Presented. .« <« « « 6 © e i

LASt GF Bil PRCeLes > «: « (¢-s 88 O44 ii

TH016: OF COBRCORtsS «ss ae we « « SS5

Table of Authorities

Cases.

. e e e e e e . e e e . iv

Statutes o e 3s 68 a a o e a _ eo vi

Other Authorities Cited. ... vii

Citations to Opinions Below... . 2

Jurisdiction. .« « « « « © « «© «© e e« 2

Statutes Involved . .«. « « « « « o« « 2

Statement of the Case . . . « « « -« 4

Reason for Granting the Writ. ... 15

Conclusion.

Appendix

a ee ee ee ee ee ee a ee

Decision and Order of the

United States Court of Ap-

peals for the Second Cir-

cuit .

e e e e e s e 2 e e e e Ani

Endorsement and Order of

the United States District

Court

for the Southern

District of New York

(Lowe,

Je) e ° e e ° e ° ° ° Keiv

18 U.S.C.

§1961(1)(A),(5

° © ° Aeviii

).

§1962(b),(¢c¢),(d) . « Awviii-ix

S1968(¢) . « «

e e e A-ix-x

iv

TABLE OF AUTHORITIES

Cases Cited:

Atlantic Federal Savings and

Loan Association of Fort

Lauderdale v. Dade Savings and

Loan Association, 592 F.Supp.

LOGS (SeDeFias L9BN). « «© 2 oo

Barker Ve Underwriters at

Lloyd's, London, 564 F.Supp.

352 (E.D.Mich. 1983). ° o ° €

Bennett v. E.F. Hutton Co., 597

F.Supp. 1547 (N.D.Ohio 1984).

Bunker Ramc Corp. v. United

Business Forms, Inc., 713 F.2d

LeTe (tee Gals Beeels * + & & *

Farmers Bank of Delaware v.

Bell Mortgage Corp., 452

F.Supp. 1278 hs oF 1978). ° ry

Furman v. Cirrito, 741 F.2d 524

(2d Cite 1984). o ° ° ° ° ° e

Glusband Ve Benjamin, 530

F.Supp. O40 (S-DeN-Y. 1981) ..

Haroco Inc. .; American Na-

tional Bank & Trust Co. of Chi-

eago, 747 F.2d 384 (7th Cir.

1984), cert. granted eB.

» 105 8.Ct. 902 Ci/TS7eS)« «

Page

» a

> 8

27

e 26

e 28

- 14

e 28

. £5

Heinold Commodities, Inc. Vv.

McCarty, 513 F.Supp. 311

(N.D.1l1l. 1979) e ° e ° © ° e °

Tanelli ve United States, 420

U.

a

n

S. 770, 786-89 (1975) . .

Kaushal v. State Bank of India,

556 F.Supp. 576 (NeDeill.

198 3) e # ° . ° e * * . e * °

Lode ve Leonardo, 557 F.Supp.

675 (N.D.Lll. 1982) «© «© «© « «@ «@

In re Longhorn Securities Liti-

poten 573 F.Supp. 255

e De kla. 1983). ° ° e e e e «

Mauriber v. Shearson/American

Express iInc., 546 F.Supp. 391

(SeDeNele 1982) e ° ° e e e e .

Maxwell v. Southwest National

Bank, Wichita, Kane, 593

F.Supp. 250 (D.Kan. 1984) . .

Ora Corp. Ve Vinson, 596

F.Supp. 1546 (D.S.C. 19384).

Parnes v. Heinold Commodities,

Inc., 487 F.Supp. 645

(HeDellli. 1980) e * e ° « e °

Poling v. Morgan, 598 F.Supp.

656 (D.Ariz. 1984). e ° . » e °

Rusello v. United States, 104

SeCts 290s 299 (i9es) © 6 ©

28

24

27

27

28

27

at

28

27

20

vi

Sedima, S.P.R.L. v. Imrex Co.,

Inc., 741 F.2d 482 (dnd Cir.

1984), cert. granted U.S.

» 105 S.Ct. 901, 83 L.Ed.2ad

917 (U.S. 84-648, Jan. 14,

1985) — 18,15,16,i17;,21

22,24,25,28,29

State Farm Fire & Casualty Co.

Ve Caton, 540 F.Supp. 67 3

(N.D.Ind. 1982) . 28

USACO Coal Co. - Carbomin

Energy, Inec., 689 F.2d 94 (6th

Cir. 1982). ee ge ag ae ee 27

United States v. Apfelbaum, 445

Ueas eee DEE Che@Ule + @ «os *% 6 23

United States v. Turkette, 452

UeS- 576 at 586-87, 101 S.Ct.

25e4 &t 25350, 69 L.Bd.26 286) . . - 22

Statutes Cited: Page

18 U.S.C. §1961 (1978). . i,2,3,4,15,16

17,19

SI982-C1970)« « 25235126 17.28

§1963 (1970) 2

Baeee Cxeres«. «i, 2585123517, 18

Bee Pees « 6 a sé es 2

Bee UOT). « « 6 2 et 2

Siew SOewel. « . 5s es ws 2

Bae COMPRIS. 5 5 te ts 2

Beers £9800). wn cw et CU

foo, 6) yO |

Beery CEOTG). aie se eo 28

buy. De. |) Pe |

vii

20 U.5.C. S38 6 5 ee eee

B56 5 + 6 2 ee ee

§$1254(i). « ee ee

Other Authorities Cited:

Websters Ninth New Collegiate

Dictionary (1983) -« « « «© « «»

116 Cong. Rec. 35342. - « « -«

116 Cong. Rec. 35343. - « « »

H.S. Gonet. Arts« is « « @ @ *

H.8. Conet. Art. Laide © © € *#

a 14

eee &

‘ 2

Page

. ae

24,25

24,25

- LT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

LYNN M. HOFFMAN, Petitioner,

Ve

ETI-QUETTE ASSAF LTD., ASSAF

IMPORTS LTD., PINO-FIORI INC.,

YOSSI ASSAF, JOSEPH CUSATI,

DENNIS DICK, KOBY KALEVKOF,

and SHARON ALEXANDER, Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Lynn M. Hoffman,

respectfully prays that a writ of certi-

orari be issued to review the judgment

and opinion of the United States Court

of Appeals for the Second Circuit en-

tered in this proceeding on February 19,

1985.

OPINIONS BELOW

The decision of the Court of Ap-

peals is not yet reported. The informal

opinion of the Court of Appeals is unre-

ported and appears in the Appendix here-

to (A-i). The endorsement rendered by

the District Court which is unreported

also appears in the Appendix hereto

(A-iv).

JURISDICTION

The judgment of the Court of Ap-

peals for the Second Circuit was entered

on February 19, 1985. This Court's jur-

isdiction is invoked under 28 U.S.C.

§1254(1) (1976).

STATUTES INVOLVED

Several provisions of the Racketeer

Influenced and Corrupt Organizations

Act, ("RICO") 18 U.S.C. §§1961-1968

(1978) (as amended) (originally

Ae tie DN ky N A nti Om RN

ee leah te om

promulgated as Title IX of the Organized

Crime Control Act of 1970, Pub. L. No.

91-452, §901(a), Oct. 15, 1970, 84

Stat. 941, and amended Pub. L. No. 95-

575, $3(c¢), Nov. 2, 1978, 92 Stat. 2465;

Pub. Le. No. 95-598, Title III, §314(g),

Nov. 6, 1978, 92 Stat. 2677; Pub. L.

No. 98-473, Title II, §§901(g) 1020,

Oct. 12, 1984, 98 Stat. 2136, 2143;

Pub. L. Now 98-547, Title II, Oct. 25,

1984, 98 Stat. 2770; Pub. L. No. 98-473,

Title II, $§§302, 2301l(a)-(c), Oct. 12,

1984, 98 Stat. 2040, 2192; Pub. L. No.

98-620, Title IV, §402(24)(A), Nov. 8,

1984, 98 Stat. 3359; Pub. L. No. 98-620,

Title IV, §402(24)(B), Nov. 8, 1984 No.,

98 Stat. 3359), in particular 18 U.S.C.

1961, 1962, and 1964 are as to their

pertinent text, reproduced at the

Appendix. (A-viii-x). The most rele-

vant provisions of the statute to this

petition are:

18 U.S.C. §1961(1) (1978):

---"racketeering acti-

vity"™ means (A) any act

or threat involving...

extortion...which is

chargeable under State

Law and punishable by

imprisonment for more

than one year;

18 U.S.C. §1964(c) (1970):

Any person injured in

his business or proper-

ty by reason of a vio-

lation of section 1962

of this chapter may sue

therefore in any appro-

priate United States

district court and

shall recover threefold

the damages he sustains

and the cost of the

suit; including a rea-

sonable attorney's fee.

STATEMENT OF THE CASE

On April 28, 1980, Eti-Quette Assaf

Ltd., a New York corporation having its

office care of Yosi Assaf, 127 West 79th

Street, New York, New York, did acquire

all right, title and interest in prem-

ises and building known as 860 Lexington

Avenue, New York, New York. It is cone

ceded that the corporation was wholly

owned and controlled by the respondent

Yosi Assaf, as were the respondent:

Assaf Imports Ltd. and PinoFiori Inc.

At the time of this acquisition the

building consisted of several residen-

tial apartments, at least three of which

were rent controlled, and commercial

Space on the lower levels of the build-

ing, in which the respondent Yosi Assaf

through the respondent Assaf Imports

Ltd. opened a ladies' shoe boutique.

Petitioner was the leaseholder of Apart-

ment 3, a rent controlled apartment at

860 Lexington Avenue. The building is

located between East 64th and 65th

Streets in Manhattan. At the time of

the acquisition, the petitioner was pay-

ing a monthly rent of approximately

$130, an extremely attractive rent for a

most prime location.

The respondents Yosi Assaf and

Joseph Cusati had been employed by Assaf

Imports Ltd. since 1977. In June and

July of 1981, the respondents Dennis

Dick and Koby Kalevkof were employed by

the respondent Assaf Imports Ltd.

On November 22, 1980, the respon-

dent Yosi Assaf approached the petition-

er and offered her $3,000 to vacate her

apartment. When the petitioner hesitat-

ed to accept, Mr. Assaf attempted to in-

timidate the petitioner by threatening

that services being provided to the ten-

ants (already seriously deficient) could

get much worse.

From December of 1980 through Octo-

ber of 1981, conditions deteriorated in

the building to the extent that it was

made uninhabitable. Services were fin-

ally restored in the latter part of Oc-

tober 1981 after the respondent Yosi

bes bin? hie

Assaf was held in criminal and civil

contempt for failure to correct the vio-

lations and fined $3,000. Thereafter,

on February 17, 1982, the respondent

Dennis Dick brought false and malicious

criminal charges of harassment and as-

Sault against the petitioner. On Febru-

ary 25, the respondent Joseph Cusati

brought false and malicious’ criminal

charges of assault and harassment

against the petitioner. On March 22,

1982, the respondent Yosi Assaf brought

false and malicious criminal charges of

harassment, menacing and criminal mis-

chief against the petitioner. On March

30, 1982, the respondent Sharon Alex-

ander brought false and malicious crimi-

nal charges of assault, harassment and

criminal trespass against the petition-

er. On April 14, 1982, the respondents

Sharon Alexander, Koby Kalevkof and Yosi

Assaf had false and malicious criminal

charges of criminal trespass and petit

larceny brought against the petitioner.

Finally, on May 7, 1982, the respondent

Dennis Dick had false and malicious cri-

minal charges of harassment’ brought

against the petitioner. As a result of

the false and malicious criminal charges

brought by the respondents Alexander,

Kalevkof and Assaf against the petition-

er on April 14, 1982, the petitioner was

arrested on the evening of April 13,

1982, and held until the morning of

April 15, 1982, and forced to spend the

aforesaid period incarcerated in the

city jail. As a result of the false and

malicious criminal charges brougnt

against the petitioner by Dennis Dick on

May 7, 1982, the petitioner was once

again arrested and held for an entire

day in the city jail on Riker's Island.

OED BBP LINE TE VEO EES

ws Ee MDA pnal po GN

ei lhe Ania Ae i AAR set RE Ne 9 RNA AM AN NAB I A ae PRA

Leable” Sah aa te

Further attempts to have the petitioner

arrested were unsuccessful. Attempts

were aise made by the respondent Yosi

Assaf to have the petitioner's minor son

arrested.

During the pendency of the criminal

charges in the New York City Criminal

Court, petitions for eviction were

brought in the New York City Civil Court

by the respondent Yosi Assaf on the

grounds of all the criminal charges pre-

viously pending against the petitioner.

The objective and end result of the on-

Slaught of criminal charges and civil

litigation brought on by the several re-

Spondents was the extortion of the peti-

tioner's leasehold in the rent control-

led Apartment 3 at 860 Lexington Avenue.

In a Stipulation entered into on

October 1, 1982, the petitioner agreed

to vacate the premises of Apartment 3 at

10

860 Lexington Avenue in return for a

cash payment of $10,000, out of which

$655.75 was applied by Yosi Assaf to an

arbitration judgment award for. rent

withheld during 1981. On November 9,

1982, barely one month after the Stipu-

lation by which the petitioner agreed to

vacate the apartment was entered into,

all criminal charges pending against the

petitioner brought by the several re-

spondents were dismissed in the Criminal

Court of the City of New York, County of

New York, Part AP9.

The Complaint fully and meticulous-

ly alleged the illegal conduct of the

several respondents and the resultant

injuries to the petitioner’ herein.

Briefly, it was alleged that the respon-

dent Yosi Assaf as the sole shareholder

and an employee of the three corporate

respondents, Eti-Quette Assaf Ltd.,

as

Assaf Imports Ltd. and Pino-Fiori Inc.,

in conspiracy with the other respon-

dents, Joseph Cusati, Dennis Dick, Koby

Kalevkof and Sharon Alexander, who were

i ee ee

either employees of the corporation(s)

or associates of Yosi Assaf, did con-

spire and did commit violations of 18

U.S.C. §$1962(b), €¢) and (€¢). It was

alleged that the respondent Yosi Assaf

through a pattern of racketeering acti-

vity maintained an interest in or con-

trol of enterprises engaged in and whose

activities effected interstate or for-

eign commerce, to wit, the several cor-

porate respondents, all being enter-

prises engaged in the foreign and inter-

State import and export of retail gar-

Pie ee Ri 9 te IOS ERNE ERE AD RT BEND Se Bt 80 ew

ments and shoes. It was further alleged

‘ that the several respondents, who were

employed by or associated with the

aforesaid enterprises engaged in

—————

le

interstate and foreign commerce, did

conduct and participate both directly

and indirectly in the conduct of the

enterprises' affairs through a pattern

of racketeering activity. Finally, it

was alleged that the several respondents

did conspire to engage in the aforesaid

conduct which is in itself a violation

of 18 U.S.C. §1962(d). Through the

means of the various acts of extortion

the petitioner was caused to suffer

severe injuries, in that she was falsely

arrested and imprisoned on several occa-

sions by the several individual respon-

dents herein, these acts constituting

acts of extortion perpetrated by these

individual respondents and designed to

and which did eventually result in the

petitioner's loss of her leasehold in-

terest in an apartment in the aforesaid

building at a great financial loss, and

13

injuries compensable under i8 U.S.C.

1964(c). Under New York State Penal

Law, larceny by extortion is punishable

for more than one year.

The Complaint was filed in the

lower court, and Answers were duly in-

terposed on behalf of the three corpor-

ate respondents and Yosi Assaf, all re-

presented by the same counsel. Separate

counsel interposed an Answer on behalf

of the respondent Dennis Dick. The re-

maining respondents are either in de-

fault or have not been served.

All answering respondents raised

an affirmative defense that the Com-

plaint failed to state a cause of

action. Although the respondents were

directed by the District Court to file

Motions for Summary Judgment pursuant to

Federal Rule of Civil Procedure 56, a

Motion was made on behalf of the

14

respondents Eti-Quette Assaf Ltd., Assaf

Imports Ltd., Pino-Fiori Ine. and Yosi

Assaf pursuant to F.R.C.P. Rule 12(b)(1)

and (6) for dismissal of the action.

Petitioner's opposition to the Motion

was served and filed in January of

1984. The Motion was joined by the re-

spondent Dennis Dick in January of 1984,

after opposition papers were served. By

endorsement dated September 20, 1984,

(A-iii) the District Court judge dis-

missed the case solely on the authority

of Sedima, S.P.R.L. v. Imrex Co. Ine.,

T4H1 F.2d 482 (2d Cir. 1984), cert.

granted ¥.8. 3 205 S.Ct. 901, 83

L.Ed.2d 917 (1/14/85); and Furman v.

Cirrito, 741 F.2d 524 (2d Cir. 1984),

that the petitioner had failed to allege

that the respondents had criminal con-

victions for the predicate acts underly-

ing the action. The Court of Appeals

affirmed (A-i).

— nm i

15

REASON FOR GRANTING THE WRIT

The Decision Below incorrectly in-

terpreted 18 U.S.C. 1961(1)(A) as re-

quiring prior criminal convictions for

the predicate acts underlying a_ RICO

claim brought by a private litigant and

conflicts with the Decisions of other

Courts of Appeals.

This Court has already heard argu-

ment in two cases which, once deter-

mined, will hopefully be dispositive of

the issue here presented on appeal. On

April 17, 1985, argument was heard in

the cases of Sedima, S.P.R.L. ve. Imrex

Co., Inec., 741 F.2d 482 (2nd Cir. 1984),

cert. granted U.S. » 105 S.Ct.

901, 83 L.Ed.2d 917 (U.S. 84-648, Jan.

14, 1985), and Haroco Inc. v. American

National Bank & Trust Co. of Chicago,

|

16

T47 F.2d 384 (7th Cir. 1984), cert.

granted _—sosUeSSe ts (105 SCHL «902

(1/14/85). Petitioner seeks to protect

her record by petitioning this Court for

Writ of Certiorari pending the decision

in Sedima, 714 F.2d 482, which appeal

has raised the precise point before this

Court and appealed herein.

The sole reason and authority for

dismissal of the Complaint in the in-

Stant case by both the District Court

and Court of Appeals was that it failed

a ee ee ee ey

to allege the existence of prior crimi-

nal convictions for the predicate acts

underlying the RICO claim. This re-

quirement, which is oo not derived

from a plain reading of the language of

18 U.S.C. 1961(1)(A), has been mandated

by the interpretation of the statute by

a divided panel in Sedima, 741 F.2d

482. In so ruling, the Court of Appeals

17

has violated the parameters of Article

III of the United States Constitution

and usurped the authority of Congress'

lawmaking powers provided for in Article

I of the United States Constitution.

By means of a most convoluted rea-

soning process, the U.S. Court of Ap-

peals for the Second Circuit has, in

Sedima, 741 F.2d 482, read into the RICO

statute a requirement of prior criminal

convictions. The language of §§1964(c),

1962(b), (c) and (d), and 1961(1)(A) is

unambiguous and clear. Prior convic-

tions for predicate acts alleged by a

private civil litigant are not re-

quired. To impose such a standard also

disregards legislative history and con-

flicts with most of the decisions which

have addressed the issue.

An analysis of the language of the

Statute first brings us to §1964(c),

which reads:

18

Any person injured in

his business or pro-

perty 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, in-

cluding a reasonable

attorney's fee.

Neither the District Court nor the

Court of Appeals ruled that the Com-

plaint failed to meet the requirements

of §1964(c) other than imposing the

prior criminal conviction rule. There-

fore, we are led to §§1962(b), (ec) and

(d). Sections (b) and (ce) both refer to

violations of the statute by virtue of

committing certain acts through a "pate

tern of racketeering activity." Section

1962(d) encompasses conspiracies to vio-

late §1962(a), (b) or (ec). All viola-

tions of this chapter therefore hinge on

19

unlawful activities perpetrated through

a “pattern of racketeering activity"

which is defined at §$1961(5):

eeepattern of racket-

eering activity re-

quires at least two

acts of racketeering

activity, one of which

occurred after the ef-

fective date of this

chapter and the last of

Which occurred within

ten years (excluding

any period of imprison-

ment) after the commis-

sion of a prior act of

racketeering activi-

CY ec

At this juncture we finally reach the

gates to the Emerald City and address

the language defining "racketeering act-

ivity" at §1961(1)(A), which in its per-

tinent parts reads:

(1) “Racketeering act-

ivity" means (A) any

act or threat involving

murder, kidnapping,

gambling, arson, rob-

bery, bribery, extor-

tion, or dealing in

narcotic or other dan-

gerous drugs, which is

20

chargeable under State

law and punishable by

imprisonment for more

than one year... [Em-

phasis supplied ]

The focal point of analysis is

therefore directed towards the words

"acts or threats chargeable under State

law." These words, under accepted law

of statutory construction, must be de-

fined according to their “ordinary mean-

ing." Rusello v. United States, 104

S.Ct. 296, 299 (1983). Using the ap-

proach in Rusello, "-able" is defined as

meaning “capable of, fit for, or worthy

of." Webster's Ninth New Collegiate

Dictionary (1983). The plain language

would therefore dictate that a RICO de-

fendant who has committed acts or

threats chargeable under state law is

merely a person susceptible to criminal

prosecution for those acts or threats

as ae

21

and needn't be one convicted for their

commission.

Even the majority of the panel

which decided Sedima, 741 F.2d 482

(1984) at 499-500, determined it "con-

ceivable" that Congress might have in-

tended the clear meaning of the plain

language at issue:

As for the language

"any act which is in-

dictable" (or "charge-

able"), conceivably

Congress meant by the

choice of these words

to suggest either that

indictments or, in the

case of certain state

felonies informations

are not required, since

the acts need only be

"indictable" or

"chargeable." [empha-

Sis added]

In ail due deference to the panel in

Sedima, that conception of Congressional

intent is the ONLY reasonable one to be

drawn, and their inquiry should have

ended .at that conclusion as to the

22

interpretation of the aforesaid key lan-

guage.

But no--the panel, being more con-

cerned with reassessing "the costs and

benefits of a dramatically expansive...

tool for combatting organized crime

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

at 586-87, 101 S.Ct. 2524 at 2530, 69

Le-Ed.2d 246), and having apparently de-

termined the costs too high, set about —

the task of restricting the application

of civil RICO by imposing requirements

for pleading clearly not contained in

the language of the statute itself. The

Sedima panel, 741 F.2d 482 at 500, felt

compelled to invent a means to the ends

of their concerns:

But a plausible alter-

native view of the

words "indictable" and

"chargeable", found in

RICO's definitional

section, is that Con-

gress did not intend to

23

give civil courts power

to determine whether an

act is "indictable" in

the absence of a pro-

perly returned indict-

ment or "chargeable"

absent an information.

Courts do not tradi-

tionally look at a

given set of facts--

proved by a preponder-

ance of the evidence

only--and say that

these facts make out

acts which are “indict-

able" or "chargeable".

This statement as to what is a

"Dlausible" alternative view is both un-

necessary legal sophistry and at vari-

ance with the normal rules of construc-

tion. "[A]jbsent clear evidence of con-

trary legislative intention, a statute

should be interpreted according to its

plain language." United States vv.

Apfelbaum, 445 U.S. 115, 121 (1980).

Moreover, there is no clear evidence of

contrary legislative intention.

When Congress required a conviction

as part of the legislative scheme of the

24

Organized Crime Control Act, it knew how

to do so. Title X, 18 U.S.C. §§3575-

3578 (1970), refers to "“conviction[s]"

at many places. See, e.g., 18 U.S.C.

§§3575(d), (e), and (g), 3576 and 3577.

Cf. Ianelli v. United States, 420 U.S.

770, 786-89 (1975) (The Organized Crime

Control Act is a “carefully crafted

piece of legislation") (construing Title

VII in light of Titles IX and X).

The majority in Sedima chose to ig-

nore what is obvious, i.e., the Congress

was acutely aware of the expansive pro-

visions of RICO and clearly did not in-

tend that a prior criminal conviction

for predicate acts be a prerequisite to

bringing a civil RICO claim. In con-

Sidering an amendment proposed by then

Congressman Mikva to impose treble dam-

ages for defendants against plaintiffs

bringing frivolous suits (Sec. 116,

25

Cong. Rec. 35342-43 (1970)), the major-

ity in Sedima refused to infer that the

aforesaid proposed amendment was evi-

dence of Congressional awareness of the

expansive nature of the RICO provisions

(Sedima, 741 F.2d at 490, n. 22). #£=This

is but One example of the majority's

Ssingle-mindedness in arriving at their

conclusion. Its conclusions as to leg-

islative intent are derived from first

interpreting the language as being ambi-

guous and then, and only then, reaching

its conclusions concerning intent based

on that "elusive" ambiguity. This rea-

soning fails utterly.

Justice Cardamones' thoughtful and

well-reasoned dissent in Sedima, 741

F.2d at 504, underscores both the neces-

sity for reversal of the majority hold-

ing and the compelling reason for grant-

ing of this writ:

26

Not only does the ma-

jority turn the ordi-

nary rules of statutory

construction on their

head by ignoring the

plain meaning of the

Statutory language, but

it also ignores’~ the

sound policy reasons

for permitting civil

RICO eases to proceed

absent prior convic-

tions for the predicate

acts. In my view, the

Civil RICO provisions

mean just what’ they

say. Because these and

other considerations

have convinced me that

the majority has

crossed the line and

trespassed into an area

exclusively reserved

for Congress, I dis-

sent.

Courts of Appeals of most other

Circuits, as well as District Courts

throughout the United States which have

addressed this issue, have concluded

that no requirement of prior criminal

convictions is contained in the language

of RICO or in the legislative history of

Congressional intent. E.g, Bunker Ramo

Corp. ve. United Business Forms, Inc.,

713 F.2d 1272 (7th Cir. 1983); USACO

Coal Co. v. Carbomin Energy, Inc., 689

F.2d 94 (6th Cir. 1982); Poling v. Mor-

gan, 598 F.Supp. 686 (D.Ariz. 1984);

Bennett v. E.F. Hutton Co., 597 F.Supp.

1547 (N.D.-Ohio 1984); Ora Corp. v. Vin-

son, 596 F.Supp. 1546 (D.S.C. 1984);

Maxwell v. Southwest National Bank,

Wichita, Kan., 593 F.Supp. 250 (D.Kan.

1984); Atlantic Federal Savings and Loan

Association of For. Lauderdale v. Dade

Savings and Loan Association, 592

F.Supp. 1089 (S.D.Fla. 1984); In re

Longhorn Securities Litigation, 573

F.Supp. 255 (W.D.Okla. 1983); Barker v.

Underwriters at Lloyd's, London, 564

F.Supp. 352 (E.D.Mich. 1983); Lode v.

Leonardo, 557 F.Supp. 675 (N.D.I1l.

1982); Kaushal v. State Bank of India,

556 F.Supp. 576 (N.D.I11l. 1983) ;

28

Mauriber v. Shearson/American Express

Inc., 546 F.Supp. 391 (S.D.N.Y¥. 1982);

State Farm Fire & Casualty Co. v. Caton,

540 F.Supp. 673 (N.D.Ind. 1982); Glus-

band v. Benjamin, 530 F.Supp. 240

(S.D.N.Y. 1981); Heinold Commodities,

Ine. Ve McCarty, $13 F.Supp. 311

(N.D.I11l. 1979); Parnes v. Heinold Com-

modities, Inc., 487 F.Supp. 645

(N.D.I11. 1980); Farmers Bank of Dela-

ware v. Bell Mortgage Corp., 452

F.Supp. 1278 (D.Del. 1978).

It is erystalline that civii RICO

contains no requirement of prior crimi-

nal conviction for predicate acts. The

courts below in dismissing and affirming

the dismissal of the instant case have

relied on a rule imposed by the majority

in Sedima, 741 F.2d 482, the basis and

reasoning for which is devoid of any vi-

able defense. This Court has a

29

clear-cut basis and, moreover, a mandate

to reverse the decisions below dismiss-

ing the Complaint herein by virtue of

the Sedima rule, a rule which runs con-

trary to sound and recognized principles

of judicial construction and interpreta-

tion.

CONCLUSION

For these reasons, a writ of certi-

orari should issue to review the judg-

ment of the Second Circuit.

( —cerald P. Wwyer

Paul E. Walker

Michael A. Calandra

Dwyer, Peltz & Walker

291 Broadway

New York, New York 10007

(212) 349-6775

Counsel for Petitioner

May 14, 1985

UNITED STATES COURT OF APPEALS

For The

SECOND CIRCUIT

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 19th day of February, one thousand

nine hundred and eighty-five.

Present:

HONORABLE WILFRED FEINBERG,

Chief Judge

HONORABLE WILLIAM H. TIMBERS,

HONORABLE RICHARD J. CARDAMONE,

Circuit Judges.

LYNN M. HOFFMAN,

Plaintiff-Appellant,

- against -

84-7858

ETI-QUETTE ASSAF LTD., et al.,

Defendants-Appellees.

A-ii

Appeal from the United States

District Court for the Southern District

of New York.

This cause came on to be heard on

the transcript of record from the United

States District Court for the Southern

District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged and decreed

that the judgment of said district court

is AFFIRMED.

l. For substantially the reasons

stated by Judge Lowe in her endorsement

dated September 2, 1984, we affirm the

dismissal of this suit claiming viola-

tions of the Racketeer Influenced and

Corrupt Organizations Act. As the

district court noted, this case is

controlled by Sedima v. Imrex Co., 741

F.2d 482 (2d Cir. 1984), cert. granted,

A-iii

53 U.S.L.W. 3506 (U.S. Jan 14, 1985)

(No. 84-648), which remains the law in

this circuit pending its consideration

by the Supreme Court.

2. Appellees have asked this court

to award them just damages and costs

pursuant to FRAP 38. Because we find

that appellant had the right to protect

her record by taking this appeal, we

deny appellees' motion.

(WILFRED FEINBERG)

D G, ief Judge

(WILLIAM H. TIMBERS)

WILLIAM H. TIMBERS,

(RICHARD J. CARDAMONE)

RICHARD J. CARDAMONE,

Circuit Judges.

A-iv

ENDORSEMENT

LYNN M. HOFFMAN v.

ETI-QUETTE ASSAF LTD., et al.

83 Civ. 2812 (MJL)

This is an action for alleged vio-

lations of the Racketeer Influenced and

Corrupt Organizations Act ("RICO"), 18

U.S.C. §§1961-1968, (1982) and the com-

mon law of New York. Plaintiff contends

that defendants conspired through a pat-

tern of harrassment, criminal behavior

and racketeering to illegally force her

to relinquish her right, title and own-

ership to a rent controlled apartment.

Defendants Yossi Assaf, Eti-Quette Assaf

Ltd, Assaf Imports Ltd and Pino-Fiori,

Inc. move to dismiss the complaint pur-

Suant to Fed.R.Civ.P. 12(b)(1) and (6).

On April 28, 1980, defendant Yossi

Assaf, as the sole stockholder of defen-

dant Eti-quette Assaf Ltd., purchased

the property known as 860 Lexington Ave-

nue. At the time of the purchase plain-

tiff and several other persons leased

apartments on the upper floors of the

building. Plaintiff alleges that from

April 28, 1980 to date, defendants com-

mitted, inter alia six separate crimes

of extortion which resulted in the lack

of basic services for the apartments, as

well as the false arrest, false impri-

sonment and malicious prosecution of

plaintiff. On October 1, 1982, plain-

tiff and Mr. Assaf appeared in the New

York City Landlord Tenant Court, at

which time a settlement between plain-

tiff and Assaf was reached. The settle-

ment provided for a cash disbursement to

plaintiff in return for her vacating the

premises. Four months after this set-

tlement was entered into, plaintiff com-

menced the present action.

Aevi

Recently, the Second Circuit has

clearly articulated the law with respect

to private civil RICO actions. See

7965 (2d Cir. 1984); Furman, et al. v.

Cirrito, et al., No. 84-7113 (2d Cir.

1984). The case of Sedima is particu-

larly applicable to the case at bar. In

Sedima, the Second Circuit held that in

order to bring a private civil RICO

action there must be criminal convic-

tions on the underlying predicate felony

offenses. Sedima, supra, at page 5576.

In the present action plaintiff has

failed to allege, and the record con-

tains no evidence that defendants have

criminal convictions for the predicate

acts underlying the action. The Court

therefore, dismisses plaintiff's RICO

claims. In the absence of valid federal

claim, plaintiff's remaining claims must

Aevii

also be dismissed. United Mine Workers

of America v. Gibbs, 7s sss FS

(1966). Defendants' motion is granted

and the case dismissed.

It Is So Ordered.

Dated: New York, New York

September 20, 1984

(Mary Johnson Lowe)

United States District Judge

Aeviii

18 U.S.C. §1961

As used in this chapter -

(1) "racketeering activity" means

(A) any act or threat involving murder,

kidnaping, gambling, arson, robbery,

bribery, extortion, dealing in obscene

matter, or dealing in narcotic or other

dangerous drugs, which is chargeable

under State law and punishable by im-

prisonment for more than one year;

(5) "Dattern of racketeering ac-

tivity”™ requires at least two acts of

racketeering activity, one of which oc-

curred after the effective date of this

chapter and the last of which occurred

within ten years (excluding any period

of imprisonment) after the commission of

a prior act of racketeering activity;

§1962

(b) It shall be unlawful for any

person through a pattern of racketeering

A-ix

activity or through collection of an un-

lawful debt to acquire or maintain, di-

rectly or indirectly, any interest in or

control of any enterprise which is en-

gaged in, or the activities of which af-

fect, interstate or foreign commerce.

(c) It shall be unlawful for any

person employed by or associated with

any enterprise engaged in, or the

activeities of which affect, interstate

or foreign commerce, to conduct or

participate, directly or indirectly, in

the conduct of such enterprise's affairs

through a pattern of racketeering

activity or collection of unlawful debt.

(d) It shall be unlawful for any

person to conspire to violate any of the

provisions of subsections (a), (b) or

(c) of this section.

§1964

(c) Any person injured in his

business or property by reason of a vio-

lation of section 1962 of this chapter

may sue therefor in any appropriate

United States district court and shall

recover threefold the damages he sus-

tains and the cost of the suit, ineclu-

ding a reasonable attorney's fee.