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

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1993

NATIONAL ORGANIZATION FOR WOMEN, INC., et al.,

" Petitioners,

JOSEPH SCHEIDLER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION

AND AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

NATIONAL ORGANIZATION FOR WOMEN, ET AL.

Of Counsel:

KIRK B. JOHNSON

EDWARD B. HIRSHFELD

MICHAEL L. ILE

AMERICAN MEDICAL

ASSOCIATION

515 North State Street

Chicago, Illinois 60610

(312) 464-5000

ANN E. ALLEN

AMERICAN COLLEGE OF

OBSTETRICIANS AND

GYNECOLOGISTS

409 12th Street, S.W.

Washington, D.C. 20024

(202) 638-5577

August 18, 1993

JACK R. BIERIG *

DAVID F. GRAHAM

RICHARD D. RASKIN

SIDLEY & AUSTIN

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

CARTER G. PHILLIPS

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Attorneys for Amici Curiae

American Medical Association

and American College of

Obstetricians and

Gynecologists

* Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

,

QUESTION PRESENTED

Whether a violation of 18 U.S.C. § 1962(c) requires

proof that either the enterprise or the predicate acts of

racketeering activity are economically motivated.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF AUTHORITIES iv

INTEREST OF AMICI CURIAE 1

STATEMENT OF THE CASE...... 4

SUMMARY OF ARGUMENT 7

SET Sh ei ee 9

THERE IS NO REQUIREMENT IN 18 U.S.C.

§ 1962(c) THAT EITHER THE ENTERPRISE

OR ANY OF THE ACTS OF RACKETEERING

MUST BE ECONOMICALLY MOTIVATED........ 9

A. A RICO “Enterprise” Does Not Require Eco-

nomic Motivation . ware 10

B. RICO Does Not Impose Any Requirement That

A Defendant’s “Racketeering Activities” Be

Economically Motivated ..........0..22.22....-.seeeeeeeeee 15

C. RICO’s Legislative History And Purposes Do

Not Justify Inserting An Economic Motivation

Requirement Into The Terms Of The Statute.... 20

CONCLUSION 23

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Averbach v. Rival Manufacturing Co., 809 F.2d

1016 (3d Cir.), cert. denied, 482 U.S. 915

“¢ RRB Car ee STERNER (oR ek eae 12

Chevron U.S.A., Inc. Vv. Natural Resources Defense

Council, Inc., 467 U.S. 887 (1984) -............-....----.- 9

Estate of Cowart v. Nicklos Drilling, —— U.S.

=m, 113 §, Ct. 2669 (1962) _..............................- 9

Good Samaritan Hospital v. Shalala, —— US.

ammo, BES GH. CE. BAGL CUBR) nn nnnnnnnnneciccnevncncrcn eee cn

H.J., Inc. V. Northwestern Beli Telephone Co., 492

U.S. 229 (1989) passim

Haroco v. American National Bank & Trust Co.,

747 F.2d 384 (7th Cir. 1984), aff’d, 473 U.S. 606

(1985) . 12

McCullough v. Suter, 757 F.2d 142 (7th Cir.

1985) ; 12

Mobil Oil Exploration & Producing Southeast, Inc.

v. United Distribution Cos., 498 U.S. 211

SET sii clei apcariebsintscaortippiociieiicateneataietieaiaeiainiae 11

Northeast Women’s Center, Inc. Vv. McMonagle,

868 F.2d 1341 (3d Cir.), cert. denied, 493 U.S.

901 (1989) PERT eRe re ae ee 16, 17

Russello v. United States, 464 U.S. 16 (1983) ......7, 10, 14

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479

AERTS Fee Bea Are eee RON Oy passim

United States v. Anderson, 716 F.2d 446 (7th Cir.

BI eis sciciies visas wacccaniacnnaiaalaseliotionstialatindeiianiiet 2

United States v. Angelilli, 660 F.2d 23 (2d Cir.

1981), cert. denied, 455 U.S. 910 (1982) -............ 12

United States v. Bagaric, 706 F.2d 42 (2d Cir.),

cert. denied, 464 U.S. 840 (1983) -.......... 13, 16, 18, 19

United States v. Cullen, 454 F.2d 386 (7th Cir.

BI iis esiiekcssdacehbake nasa intaieiaartsatidiab it aaiitinibenniins 23 1

United States v. Ellison, 793 F.2d 942 (8th Cir.),

cert. denied, 479 U.S. 987 (1986) .....................---- 13, 19

United States v. Ivic, 700 F.2d 51 (2d Cir. 1983) ...passim

United States v. Murphy, 768 F.2d 1518 (7th Cir.

1985), cert. denied, 475 U.S. 1012 (1986) ........... 12

nT |

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Turkette, 452 U.S. 576 (1981) ....passim

Wisconsin V. Mitchell, 113 S. Ct. 2194 (1998) ........ 8,17

Statutes

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

i csiiasaunasen 21, 22

Racketeer Influenced and Corrupt Organizations

Mae, TB UBC. © 1961 66 606. onan nncnccnnccecnnccencccececes passim

Sherman Act, 15 U.S.C. §1 et seq. oo... eee 4

Legislative Materials

116 Cong. Rec. 35326 (1970) -.00. KA 20

Articles

J. Adams, “After Second Bombing, FBI Warns

Academics,” Chicago Tribune (June 25, 1993).. 3, 22

M. Specter, “Animal Research Labs Increasingly

Besieged; Violence, Threats From Activists

Force Institutions to Tighten Security,” Wash-

ington Post (May 30, 1989) .........0. 3

S. Stein, “Abortion Doctors Under Siege; Protes-

tors Decry Killing; Defend Focus on Physi-

cians,” Chicago Tribune (March 12, 1998)........ 3

A. Trafford, “The Rise of Medical Vigilantes,”

Washington Post (Sept. 8, 1987) ......................... 3

In THE

Supreme Court of the United States

OcTOBER TERM, 1993

No. 92-780

NATIONAL ORGANIZATION FOR WOMEN, INC.., et al.,

e Petitioners,

JOSEPH SCHEIDLER, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION

AND AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

NATIONAL ORGANIZATION FOR WOMEN, ET AL.

The American Medical Association and the American

College of Obstetricians and Gynecologists respectfully

submit this brief as amici curiae in support of petitioners.

The written consent of all parties has been obtained and

filed with the Clerk in accordance with Supreme Court

Rule 37.3.

INTEREST OF AMICI CURIAE

Amicus American Medical Association (“AMA”) is a

private, voluntary, non-profit organization of physicians.

Founded in 1846, its purpose is to promote the science and

art of medicine and to improve the public health. The

2

AMA’s 280,000 members include practitioners in all

areas of medicine, medical research, and medical

education.

Amicus American College of Obstetricians and Gyne-

cologists (“ACOG”) is a private, voluntary, non-profit

organization of physicians who specialize in obstetric and

gynecologic care. ACOG is the leading group of pro-

fessionals providing health care to women. Its over

33,000 members represent approximately 90 percent of

all obstetricians and gynecologists practicing in the

United States.

This case involves alleged systematic attempts to use

criminal activity as a means of preventing medical prac-

titioners from carrying on their professional work. Amici

and their members have a vital interest in ensuring that

physicians and the facilities in which they practice are

adequately protected from the disruptions caused by con-

certed criminal activities. Such protection is necessary

not only to guard the lives and livelihoods of physicians

themselves but, most importantly, te ensure the health

and safety of patients, to preserve their unimpeded access

to lawful and proper medical care, and to advance the

public interest in medical research.

Increasingly, medical practitioners, medical research-

ers and medical facilities across the nation have become

targets of criminal attacks by individuals and organiza-

tions who wish to halt or impede their work. The instant

case involves one frequent target of such illegal acts—

clinics that perform abortions or provide reproductive

counseling. Although abortion is clearly a subject of in-

tense societal debate, these clinics and the physicians

associated with them have too often been the subject of

lawless conduct that goes far beyond mere speech. Such

conduct has included actual and attempted murders, kid-

nappings, bombings, arsons and extortion.’ Earlier this

1 See, e.g., United States v. Anderson, 716 F.2d 446 (7th Cir.

1983) (clinic physician and his wife kidnapped from home at gun-

3

year, for example, physician David Gunn was murdered

outside a Pensacola, Florida abortion clinic after pro-

testers distributed “wanted” posters with his name and —

picture on them.’

But the problem is by no means limited to the abortion

context. Organized illegal attacks on medical practice

and especially on medical research arise from an expand-

ing list of sources. In recent years, vigilantes have fire-

bombed medical laboratories and set fire to medical re-

search facilities as well as women’s health clinics. Physi-

cians, nurses and other health practitioners have received

death threats and been the subject of direct attacks.

These activities have been carried out by extremist

groups acting under the banners of such causes as animal

rights, environmentalism, antibiotechnology and _anti-

militarism.’ The tragic costs of this criminal conduct in-

clude, of course, the pecuniary and personal losses suf-

fered by the immediate victims. In addition, however,

these acts take a serious toll on the progress of medicine

in this country and the consequent wellbeing of our

citizens.

Organized illegal conduct of this sort poses distinct law

enforcement problems and requires distinctive remedies.

It is not enough to pursue each individual wrongdoer.

Rather, it is essential to have a remedy against any or-

ganization through which these types of activities are

point, held captive for eight days, and threatened with execution

unless he ceased performing abortions).

2S. Stein, “Abortion Doctors Under Siege; Protestors Decry

Killing; Defend Focus on Physicians,” Chicago Tribune (March

12, 1993), at 1.

3 See, e.g., A. Trafford, “The Rise of Medical Vigilantes,” Wash-

ington Post (Sept. 8, 1987), at Z15; M. Specter, “Animal Research

Labs Increasingly Besieged; Violence, Threats From Activists Force

Institutions to Tighten Security,” Washington Post (May 30, 1989),

at Al; J. Adams, “After Second Bombing, FBI Warns Academics,”

Chicago Tribune (June 25, 1993), at 2.

4

conducted. The Racketeer Influenced and Corrupt Or-

ganizations Act, 18 U.S.C. § 1961 et seg. (“RICO”),

provides such a remedy.

Amici fully support the right of individuals and

organizations to make known their views on matters of

public importance. Amici submit, however, that crim-

inal attacks against health practitioners and researchers—

even when motivated by an ideological commitment—are

readily distinguishable from legitimate forms of political

expression. Such criminal actions should be subject to

the full panoply of legal remedies. To support the avail-

ability of RICO remedies against those who engage in

such actions, amici submit this brief in support of

petitioners.

STATEMENT OF THE CASE

Petitioners are two health clinics that provide abortion

services and a national non-profit organization aimed at

advancing and protecting women’s rights. The relevant

respondents (the “PLAN defendants”) are several indi-

viduals and organizations who are active in an anti-

abortion coalition named Pro-Life Action Network

(“PLAN”). J.A. 48-55.*

1. Petitioners filed this action in the United States

District Court for the Northern District of Illinois, alleg-

ing violations of several sections of RICO—specifically

Sections 1962(a), (c) and (d)—and of the Sherman

Act, 15 U.S.C. § 1 et seq. 968 F.2d at 614. Petitioners

also pleaded pendent state law claims. During the course

of proceedings in the district court, petitioners’ initial

complaint was amended twice and was supplemented by a

“RICO Case Statement” which further detailed their

RICO allegations. J.A. 39-80, 87-117.

4The following citation forms are used in this brief: “J.A.”

refers to the Joint Appendix filed with the Court; “968 F.2d”

refers to the opinion of the court of appeals; and “765 F. Supp.”

refers to the opinion of the district court.

5

As amended and supplemented, the complaint alleged

that respondents had engaged and were engaging in a

conspiracy to close health clinics providing abortions

through a pattern of illegal activity, including the ex-

tortionate use of force and threatened force against physi-

cians, other health care personnel, and patients. J.A. 65-

74. In particular, petitioners alleged that between 1980

and 1990 the PLAN defendants and their co-conspirators

had engaged in a wave of criminal activity directed

against such clinics. This activity included, inter alia,

firebombings; numerous other acts of arson an:! attempted

arson; direct threats of personal harm to clinic personnel

and patients, as well as threats against the clinics’ land-

lords, laboratories and suppliers; assaults and _ batteries

upon clinic staff and personnel; ransacking of clinics with

accompanying criminal destruction of property; and home

and business invasions (including in one case, the inva-

sion of a judge’s home). J.A. 91, 118-97. These activi-

ties and others were alleged to be for the purpose of

driving clinics performing abortions out of business.

J.A. 39.

Count three of petitioners’ complaint is the only count

currently at issue before this Court. Count three charac-

terizes these alleged illegal activities as violations of 18

U.S.C. § 1962(c) and, because this violation was al-

leged to be the result of a conspiracy, also of Section

1962(d). Specifically, petitioners alleged that PLAN

is an associational “enterprise” under RICO. Petitioners

further alleged that PLAN’s affairs had been conducted

by the PLAN defendants through a pattern of unlawful

predicate illegal acts that caused substantial injury to

petitioners’ business and property. J.A. 72-73.

2. The district court granted respondents’ motion to

dismiss the complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. With respect to count

three, the court relied on a line of cases following the

Second Circuit’s opinion in United States v. Ivic, 700

6

F.2d 51 (2d Cir. 1983). It held “that an economic

motive requirement exists to the extent that some profit-

generating purpose must be alleged in order to state a

RICO claim’ under Section 1962(c). 765 F. Supp. at

943. The district court found that the allegations of

count three failed to satisfy this “economic motive re-

quirement” because “the primary objective of the alleged

enterprise and its pattern of predicate acts was to drive

clinics that perform abortions out of business”—“not

to obtain money.” ° /d. at 944.

3. The court of appeals affirmed. Like the district

court, the court of appeals relied upon United States v.

Ivic, 700 F.2d 51 (2d Cir. 1983). It held that a RICO

violation requires “that either the predicate acts or the

enterprise be geared toward economic gain.” 968 F.2d

at 628. Although the court of appeals did not “contest

that the defendants’ activities had an economic effect on

the plaintiffs,” or that their “reprehensible criminal” con-

duct was designed to raise the clinics’ costs and drive

them out of business, the court refused “to equate that

effect with the economic motive required by /vic and its

progeny.” Jd. at 630. The court accordingly found that

petitioners had not “satisfied the economic motive re-

quirement of § 1962(c),” because “the aim of the extor-

tion is to close women’s health centers,” and held that

count three had appropriately been dismissed. /d. at 630.

5 The district court also rejected petitioners’ argument that even

if some “economic motive” were required, it was present because

the PLAN defendants’ unlawful activities were in part designed to

elicit increased donations and financial support. “If this were the

case, a plaintiff in a RICO action could meet the economic motive

requirement simply by alleging . . . that the defendant was moti-

vated by the possibility of gaining financially from the voluntary

contributions of those sympathizers during the course of the activi-

ties. This result is nonsensical, and the court refuses to adopt it.”

765 F. Supp. at 944.

7

SUMMARY OF ARGUMENT

The court of appeals erred in holding that Section

1962(c) of RICO requires proof of “economic motiva-

tion” in order to establish a violation. Section 1962(c)

contains four specific elements. Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479, 496-97 (1985). None of these ele-

ments, explicitly or implicitly, requires proof of economic

motivation. Accordingly, an organization that systemat-

ically engages in illegal acts of vigilantism designed to _

interfere with the provision of medical care or the ad-

vancement of medical science is subject to liability under

Section 1962(c)—regardless of whether the organization

has a profit-seeking purpose.

First, a RICO “enterprise” need not be motivated by

a desire for economic gain. Quite to the contrary, the

Statutory definition of a RICO enterprise encompasses

“any” organization, individual, or group of individuals

associated in fact. 18 U.S.C. § 1961(4). This definition

manifests a clear intent to reach broadly and does not

support any implicit limitations. Russello v. United States,

464 U.S. 16, 21 (1983). Certainly, there is no warrant

in the language of the statute for engrafting an economic

motivation requirement onto the carefully crafted, expan-

sive definition of a RICO enterprise.

Second, RICO does not require that a defendant’s “rack-

etering activity” be economically motivated. RICO de-

fines racketerring as any act or threat that is unlawful

under certain state or federal criminal laws. 18 U.S.C.

§ 1961(1). There is no additional requirement that the

predicate acts of racketeering be driven by a profit-seeking

purpose. Indeed, several of the crimes specified in Sec-

tion 1961(1)—such as murder, kidnapping and arson—

do not require an intent to profit financially. The court

of appeals’ adoption of the economic motivation require-

ment is precisely the sort of creative RICO-limiting inter-

pretation not intended by Congress that this Court con-

8

sistently has rejected. See, e.g., H.J., Inc. v. Northwestern

Bell Telephone Co., 492 U.S. 229 (1989); Sedima,

S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

Third, although not necessary to the proper interpreta-

tion of the statute, the legislative history of RICO does

not support the imposition of an economic motivation

requirement. This history confirms the plain meaning of

the statute that Congress intended RICO “to encompass

a wide range of criminal activity, taking many different

forms and likely to attract a broad array of perpetrators

operating in many different ways.” HJ., 492 U.S. at

248-49. Congress was concerned with the effects of

organized criminal acts on victims—not with whether

those acts were committed in pursuit of money, political

power or some ideological cause. Criminal acts of vio-

lence should not be confused with legitimate forms of

political expression. See Wisconsin v. Mitchell, 113 S. Ct.

2194, 2199 (1993).

Organized, violent attacks against medical professionals

and researchers are a growing problem in our society

for which the strongest legal remedies are necessary.

RICO provides useful and appropriate remedies to ad-

dress this problem.

9

ARGUMENT

THERE IS NO REQUIREMENT IN 18 U.S.C. § 1962(c)

THAT EITHER THE ENTERPRISE OR ANY OF THE

ACTS OF RACKETEERING MUST BE ECONOMI-

CALLY MOTIVATED.

The court of appeals stated that its interpretation of

Section 1962(c) as requiring an economic motive “is

dictated by the terms of the statute.” 968 F.2d at 629.

Amici agree that the statutory language is and should be

decisive in this case.° The language of a statute is “the

most reliable evidence of its intent.” United States v.

Turkette, 452 U.S. 576, 593 (1981). Thus, “t]he start-

ing point in interpreting a statute is its language, for

‘LiJf the intent of Congress is clear, that is the end of the

matter.’” Good Samaritan Hospital v. Shalala, -———

US. , 113 S. Ct. 2151, 2157 (1993) (quoting Chev-

ron U.S.A., Inc. Vv. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842 (1984)). See Estate of Cowart

Vv. Nicklos Drilling, —— USS. , 112 S. Ct. 2589,

2594 (1992).

Contrary to the statement of the court of appeals, the

language of the statute directly contradicts its interpretation.

This Court has previously recognized that Section 1962(c)

presents four—and only four—elements for proof of a

violation. “A violation of § 1962(c) .. . requires (1)

conduct (2) of an enterprise (3) through a pattern (4)

of racketeering activity... . But the statute requires no

more than this.” Sedima, 473 U.S. at 496-97 (emphasis

supplied). Concomitantly, this Court has consistently

rejected attempts to introduce into RICO additional re-

6 Section 1962(c) provides in its entirety as follows: “It shall be

unlawful for any person employed by or associated with any enter-

prise engaged in, or the activities 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.” 18 U.S.C.

§ 1962(c).

10

quirements that lack any firm grounding in the statutory

text. See, e.g., id. at 495 (rejecting “racketeering injury”

requirement); H.J., Inc. v. Northwestern Bell Telephone

Co., 492 US. 229, 249 (1989) (rejecting “organized

crime” requirement).

“Economic motivation” does not appear as a separate

statutory requirement in Section 1962(c). Such a re-

quirement can legitimately be said to exist, therefore, only

if it inheres within one or more of the four express ele-

ments of a Section 1962(c) violation. Recognizing this

principle, the court of appeals claimed to discover its

“economic motivation” requirement within the para-

meters of two other express statutory elements: (1) a

RICO “enterprise,” and (2) “racketeering activity.” But

neither of these statutory terms provides a legitimate

vehicle for the RICO limitation that respondents seek to

import. To the contrary, a requirement of “economic

motivation” is entirely foreign to the relevant statutory

provisions.

A. A RICO “Enterprise” Does Not Require Economic

Motivation.

1. The term “enterprise” is not left undefined or am-

biguous in RICO. The statute explicitly defines this term

as including “any individual, partnership, corporation, as-

sociation, or other legal entity; and any union or group

of individuals associated in fact although not a legal

entity.” 18 U.S.C. § 1961(4) (emphasis supplied). As

this Court has observed, the statutory definition is expan-

sive. Russello v. United States, 464 U.S. 16, 21 (1983);

United States v. Turkette, 452 U.S. 576, 580-81, 587,

593 (1981); Sedima, 473 U.S. at 497-98 (“RICO is

to be read broadly. This is the lesson not only of Con-

gress’ self-consciously expansive language and overall! ap-

proach but also of its express admonition that RICO is to

‘be liberally construed to effectuate its remedial pur-

poses’”) (citation omitted).

11

The breadth of this statutory definition is most appar-

ent in its use of the word “any.” As this Court has

noted, “[t]here is no restriction upon the associations

embraced by the definition,” Turkette, 452 U.S. at 580,

and also no uncertainty in the meaning of the term.

Id. at 581. “‘[A]ny’ encompasses ‘all.’” Mobil Oil Ex-

ploration & Producing Southeast, Inc. v. United Distribu-

tion Cos., 498 US. 211, 223 (1991). In short, any

legal entity or any association in fact can constitute an

“enterprise” within the meaning of the Act. :

2. Despite the apparent breadth of the statutory defi-

nition of “enterprise,” the Second Circuit in United States

v. Ivic, 700 F.2d 51, 60 (2d Cir. 1983), limited the

application of this term to “profit-seeking ventures.” Spe-

cifically, the court concluded in Ivic that “the term ‘en-

terprise’ . . . refers to the sort of entity in which funds

can be invested and a property interest of some sort

acquired, and hence the sort of entity which one joins to

make money. Although perhaps somewhat wider in its

reach than ‘business,’ an ‘enterprise’ . . . is evidently

an organized profit-seeking venture.” Id. (emphasis sup-

plied). The court below embraced this conclusion. It

held that the term enterprise “conveys a restriction to

economic entities.” 968 F.2d at 628. It purported to

find further support in this Court’s occasional references

to “businesses” when speaking about the enterprise con-

cept.’ 968 F.2d at 629.

7 The sole such reference cited by the court of appeals—contained

within an excerpt from H.J., 492 U.S. at 249—simply lacks the

significance the court of appeals seeks to ascribe to it. The relevant

portion of H.J. merely recapitulated the holding in Sedima that

RICO was not intended to be limited only to mobsters but applies

equally to “legitimate business” engaged in repeated criminal activ-

ity. A holding that RICO can be applied to “legitimate business”

is hardly the same, however, as a holding that RICO applies only

to businesses. Moreover, if Congress had intended that the term

“enterprise” apply only to businesses, it could have inserted that

single word, which it in fact used elsewhere in the statute. See,

——

12

This interpretation is squarely at odds with the statu-

tory definition, which contains no restriction to “profit-

seeking ventures.” Moreover, no portion of the defini-

tional language is susceptible to such an interpretive

gloss. For example, the statute includes any “individual”

as a qualifying enterprise—and individuals are not gen-

erally thought of as “profit-seeking ventures.” See Mc-

Cullough v. Suter, 757 F.2d 142 (7th Cir. 1985). More-

over, Section 1961(4)’s inclusion of “any legal entity”

quite clearly encompasses such organizations as non-profit

corporations or governmental institutions—neither of

which have profits as their purpose. Indeed, the lower

courts, including the Seventh Circuit, have consistently

recognized that such entities qualify as RICO enterprises.°

See, e.g., United States v. Murphy, 768 F.2d 1518, 1531

(7th Cir. 1985), cert. denied, 475 US. 1012 (1986);

United States v. Angelilli, 660 F.2d 23, 30-35 (2d Cir.

1981), cert. denied, 455 U.S. 910 (1982); Averbach v.

Rival Manufacturing Co., 809 F.2d 1016, 1018 (3d Cir.),

cert. denied, 482 U.S. 915 (1987).

Nor does the statutory definition provide any greater

warrant for imposing a “profit-seeking” requirement upon

associational enterprises. See Turkette, 452 U.S. at 582

n.4. To be sure, an associational enterprise must be com-

prised of “a group of persons associated together for a

e.g., §1964(c) (“any person injured in his business or property”’) ;

§ 1968(d). (“principal office or place of business”), f(2), (g)

(“transacts business”). The fact that Congress did not do so,

however, significantly undermines the reasoning of the court below.

See Turkette, 452 U.S. at 581.

8 The incongruity of requiring that a RICO enterprise must have

profits as its purpose is even more apparent when it is understood

that under RICO the enterprise is frequently the victim or passive

tool of wrongdoers. See Haroco v. American National Bank &

Trust Co. of Chicago, 747 F.2d 384, 401 (7th Cir. 1984), aff’d,

473 U.S. 606 (1985). Why the victim’s purposes or motivations

should be at all relevant in determining the existence of a RICO

violation is incomprehensible.

13

common purpose,” id. at 583, but financial gain is only

one of many potential types of common purpose. Nothing

in § 1961(4) suggests that a financial purpose is the

only purpose that suffices for an associational enterprise.”

See, e.g., United States v. Ellison, 793 F.2d 942 (8th Cir.),

cert. denied, 479 U.S. 937 (1986) (white supremacist

group as enterprise).

In sum, the definition of enterprise in Section 1961(4)

unambiguously omits any requirement that an organiza-

tion’s conduct be motivated by a desire for economic gain.

Even the Second Circuit, in commenting on its own ruling

in Ivic, has recognized that “[s]ection 1961(4) appears

to contemplate application of RICO to enterprises which,

for example, are not themselves profit-making . . . . The

Situation reached by § 1962 may thus not always be one

in which the enterprise ‘makes money’ for its members.”

United States v. Bagaric, 706 F.2d 42, 56 (2d Cir.),

cert. denied, 464 U.S. 840 (1983).

3. Because Section 1961(4) itself provides no support

for a requirement that the enterprise be driven by a pri-

mary purpose of economic gain, the opinion below—like

Ivic—virtually ignores this express Statutory definition.

Instead, both of these opinions attempted to infer the

® Ivie attempted to reconcile its economic motivation requirement

with Turkette by claiming that while Turkette “held that the term

‘enterprise’ as used in RICO encompasses illegitimate organizations,

nothing there suggests that it reaches every such organization,

even one whose animating long-run purpose and predicate crimes

are political rather than pecuniary.” Ivic, 700 F.2d at 68. Accord

968 F.2d at 627. However, this statement simply ignores Turkette’s

conclusion, based upon an analysis of the statutory definition of

enterprise, that “[t]here is no restriction upon the associations

embraced by the definition: an enterprise includes any union or

group of individuals associated in fact.” Turkette, 452 U.S. at 580.

In short, Turkette did hold that every illegitimate organization

qualifies as an enterprise, requiring only that the existence of an

associational organization be demonstrated through proof of a

common purpose, organization and continuity. Jd. at 583.

14

meaning of “enterprise” as used in Section 1962(c) by

examining the context in which the term is used in Sec-

tions 1962(a) or (b). See Ivic, 700 F.2d at 60-61; 968

F.2d at 627, 629. More specifically, they viewed Sections

1962(a) and (b) as implying an enterprise “in which

funds can be invested and a property interest of some

sort acquired, and hence the sort of entity which one joins

to make money.” Jvic, 700 F.2d at 60-61. They con-

cluded that “enterprise” should be given “the same mean-

ing” in subsection 1962(c). Jd. This is the sole apparent

basis for the court of appeals’ holding “that this interpre-

tation of § 1962(c) is dictated by the terms of the stat-

ute.” 968 F.2d at 629.

This attempt to extrapolate a definition for the term

enterprise as used in Section 1962(c) constitutes a wholly

misguided exercise. The statute itself expressly supplies

the relevant definition.

In any event, the premise of this argument—that the

definition of enterprise must be modified within the con-

text of Sections 1962(a) and (b)—is erroneous for at

least three separate reasons. First, even if profit-seeking

ventures were the only types of enterprises to which sub-

sections (a) or (b) could be applied, this would not

imply any alteration in or limitation of the statutory defi-

nition of “enterprise.” “Language in a statute is not ren-

dered superfluous merely because in some contexts that

language may not be pertinent.” Turkette, 452 U.S. at

583 n.5. Indeed, the court of appeals’ argument on this

point is strikingly similar to RICO-limiting arguments

previously rejected by this Court.

For example, one of the arguments raised in support of

the claim that “enterprise” should be limited to “‘legiti-

mate organizations’ was that various of the statutory

remedies “would have utility only with respect to legiti-

mate enterprises.” /d. at 585. See also Russello v. United

States, 464 U.S. 16, 24 (1984). But as this Court

15

recognized, “[e]ven if one or more of the civil remedies

might be inapplicable to a particular illegitimate enter-

prise, this fact would not serve to limit the enterprise con-

cept.” Turkette, 452 U.S. at 585.

Second, and relatedly, to the extent that only certain

types of enterprises are subject to Sections 1962(a) and

(b), that is not because the definition of enterprise is

altered as it applies in those sections. It is because those

sections each impose additional unique requirements that

are entirely absent from Section 1962(c). Thus, for ex-

ample, it is the requirement of a use or investment of

illegally derived income that potentially makes Section

1962(a) only applicable to certain enterprises. But that

does not affect the core statutory definition of enterprise.

Third, the shorthand description of Sections 1962(a)

and (b) that /vic used to support its conclusion that “en-

terprise” in these sections refers to an “organized profit-

seeking venture” is deeply flawed. Ivic, 700 F.2d at 60.

These sections do not merely concern the investment of

funds or the acquisition of interests in an enterprise. /d.

Section 1962(a) also prohibits the use of certain funds

to operate an enterprise—an activity which does not in

any way require that the enterprise pursue profits.

Similarly, Section 1962(b) prohibits the unlawful mainte-

nance of control of an enterprise—again, not requiring a

profit-seeking purpose. In short, the premise that Sections

1962(a) and (b) necessarily apply only to profit-seeking

organizations is itself incorrect and ignores the statutory

language.

B. RICO Does Not Impose Any Requirement That A

Defendant's “Racketeering Activities” Be Economically

Motivated.

1. Section 1961(1) of RICO states that “racketeer-

ing activity” “means” any act or threat that is unlawful

under generically described state criminal laws or specified

federal criminal provisions. 18 U.S.C. § 1961(1) (em-

neil

16

phasis supplied). Other than enumerating the relevant

federal statutes and state offenses, the statute provides no

other restriction on the qualifying predicate acts. In par-

ticular, an “economic motivation” requirement cannot be

found in, and is not added by, the definition of “‘racketeer-

ing activity.” “‘[R]Jacketeering activity’ consists of no

more and no less than commission of a predicate act.”

Sedima, 473 U.S. at 495. Because “racketeering activity”

is expressly defined by reference to other statutes, proof

of a racketeering act therefore requires only the same

elements as would be necessary to be “chargeable,” “in-

dictable” or “punishable” under the underlying criminal

Statute. 18 U.S.C. § 1961(1). See Northeast Women’s

Center, Inc. v. McMonagle, 868 F.2d-1342, 1350 (3d

Cir.), cert. denied, 493 U.S. 901 (1989). °°

Although some of these underlying criminal statutes

may contain an economic element—for example, the fed-

eral statute relating to embezzlement or theft—others

clearly do not. For example, Section 1961(1) includes

as racketeering activity “amy act or threat” involving

murder, kidnapping or arson. 18 U.S.C. § 1961(1) (em-

phasis supplied). Indeed, the very line of Second Circuit

decisions relied upon by the court of appeals here candidly

concedes that:

motive itself is not generally an element of a par-

ticular offense . . . . RICO demands no such in-

quiry. The offenses it proscribes are, in the main,

activities punishable irrespective of motives for per-

formance, and accordingly they are provable by

showing mens rea in the typical fashion. Hence, no

additional scienter requirement is imposed by the

Statute.

Bagaric, 706 F.2d at 53 (emphasis supplied).

Further, an economic motivation requirement is not ,

necessary in order to distinguish acts of systematic illegal-

ity from legitimate forms of political expression. Vigi-

lantes who take animals from medical research labora-

cael

17

tories, harass and victimize health care providers, or

otherwise engage in acts of lawlessness and mayhem de-

serve no special treatment by the courts simply because

their crimes are motivated in part by their emotional

commitment to a cause. Cf. Wisconsin v. Mitchell, 113

S. Ct. 2194, 2199 (1993). Neither the terrorists re-

sponsible for the bombing of the World Trade Center nor

the zealots involved in the murder of Dr. David Gunn

should be shielded from RICO prosecution by the ideo-

logical purpose underlying their crimes. Organized acts

of criminality are among the core concerns of RICO, and

RICO remedies should be available to redress them.

2. Because Section 1961(1) contains no “economic

motivation” requirement, and the predicate acts at issue

here derive from criminal statutes that contain no such

element,”° the court of appeals’ insistence upon “eco-

nomically motivated predicate acts” lacks any grounding

in the statutory language. 968 F.2d at 629. In fact, the

court of appeals did not even attempt to identify any

statutory language that could be said to apply an addi-

tional “economic motivation” requirement to “racketeer-

ing activity.”

Instead, the court of appeals justified its adoption of

an economic motivation requirement for predicate acts

solely on the basis that this would advance the same pur-

poses served by its “economically motivated enterprise”

requirement. Concomitantly, notwithstanding its conclu-

sion that the terms of the statute require that a RICO

enterprise be economically motivated, the court of appeals

© The court of appeals here, agreeing with the Third Circuit’s

decision in Northeast Women’s Center, 868 F.2d at 1349-50, acknowl-

edged that the Hobbs Act, 18 U.S.C. §1951-—which punishes ob-

struction of interstate commerce through extortionate means, and

is one of the statutory provisions enumerated in Section 1961(1)—

does not require that the defendant profit economically. 968 F.2d

at 629 n.17. Many of the predicate acts pleaded by petitioners in

this case consisted of alleged acts of extortion in violation of the

Hobbs Act.

18

adopted the view that this requirement need not be ad-

hered to in all circumstances. Relying upon Bagaric, 706

F.2d at 56, the court held it permissible to “extend[] the

economic motivation limitation by allowing economically

motivated predicate acts to bring conduct within the scope

of RICO.” 968 F.2d at 629. The court did not require,

however, that predicate acts always be “economically

motivated.” In those instances where the enterprise is

economically motivated, the predicate acts need not be.

Conversely, in those instances where the enterprise is not

economically motivated, economic motivation for the

predicate acts is required. Jd. at 628-30.

Although these alternative formulations obviously pro-

vide some degree of flexibility in interpretation, they also-

reveal the incoherence of the court’s statutory analysis. If

economic motivation were in fact a statutorily required

element for an “enterprise,” then that element could not

be required in some cases and ignored in others—at least

absent some statutory basis for distinguishing between the

two types of cases. No court has ever purported, how-

ever, to locate such distinguishing language in the statu-

tory text. Similarly, a requirement of economic motiva-

tion for predicate acts cannot come and go as conveni-

ence dictates.

In short, the court of appeals’ acceptance of alterna-

tive methods of proving economic motivation merely con-

firms that it is neither the enterprise nor the predicate

acts of racketeering activity that require economic moti-

vation. Simply put, this requirement lacks any textual

basis in the Act.

3. The imposition of a free-floating “economic motiva-

tion” requirement, untethered to any statutory language,

is precisely the kind of creative RICO-limiting interpre-

tation that this Court has repeatedly condemned. This

additional concept appears nowhere in the statute and

affirmatively contradicts the intentionally broad statutory

definitions. There is no more room for this concept than

there has been for previously invented limitations such

as “organized crime,” “previous conviction,” “multiple

19

scheme” or “racketeering injury.” H.J., 492 U.S. at 241,

249; Sedima, 473 U.S. at 488-89, 494-95.

In any event, an “economic motivation” requirement

poses a multitude of definitional problems, particularly

as applied to predicate acts. For example:

* Must every predicate act forming a “pattern” of

racketeering activity be economically motivated? Or

is it enough if only some are?

* If non-economically motivated predicate acts are

permitted to be included within a pattern, should

remedies be available pertaining to these acts—e.g.,

civil actions by direct victims?

* Is motivation really the test? Or must the crime

itself directly involve the receipt of money or other

financial gain, thereby giving it “an economic dimen-

sion”? Bagaric, 706 F.2d at 53 n.11.

* If an “economic dimension” is the requirement,

how does one make sense of the numerous predicate

acts set forth in § 1961(1) that do not involve re-

ceipt of money? For example, if acts which them-

selves lack an “economic dimension” are undertaken

for economic purposes—e.g., a series of murders to

serve as “examples” to one’s business competitors—

does that suffice? ™

* If motivation is the test, must the economic motive

be predominant? Or is a secondary economic pur-

pose sufficient? Is there a distinction between short-

term and long-term motives? ”

11 Cf. United States v. Ellison, 793 F.2d 942, 950 (8th Cir. 1986)

(finding RICO pattern established where predicate acts produced

no direct financial benefit but bolstered morale and commitment of

members of white supremacist organization and furthered inten-

tions to punish nonconforming groups).

12“An interpretation of RICO requiring proof of long-term pecu-

niary objectives which in some sense can be said to supersede

accompanying political or religious ones would invite a repetition

of this conduct. It would authorize the admission of evidence of

political beliefs, racial animosities, and family and blood feuds as

justifications for criminal acts.” Bagaric, 706 F.2d at 565.

20

These issues represent just some of the thorny problems

raised by the court of appeals’ economic motivation re-

quirement. They reveal that this requirement, divorced

as it is from the statutory text, is every bit as amorphous

and difficult to define as the other non-statutory additions

that have been rejected by this Court. Sedima, 473 U.S.

at 494-95; H.J., 492 U.S. at 229 n.3 & 249. As in those

instances, “the difficulty of that task [of definition] itself

cautions against imposing such a requirement.” Sedima,

473 US. at 495.

C. RICO’s Legislative History And Purposes Do Not

Justify Inserting An Economic Motivation Require-

ment Into The Terms Of The Statute.

1. Because this is a case where the terms of the statute

make plain its meaning, no examination of the legislative

history is necessary. “Congress’ ‘inklings’ are best deter-

mined by the statutory language that it chooses, and the

language it chose here extends far beyond the limits

drawn by the Court of Appeals.” Sedima, 473 U.S. at

495 n.13. The statutory language is itself decisive.

In any event, nothing in the legislative history supports

the view that RICO was intended not to apply to per-

sistent, systematically organized criminal conduct under-

taken with non-economic motives. To the contrary, at

least one member of Congress opposed to the legislation

appears to have specifically envisioned the possibility

that it would be applied to politically motivated groups:

“We must remember that henceforth the term ‘racketeer-

ing activity’ is given very broad definition and very well

could extend to some of our labor unions and very def-

initely to counterrevolutionary activities.” 116 Cong. Rec.

35326 (1970) (remarks of Rep. Rarich).

Proponents of an “economic motive” requirement point

to the fact that much of the impetus for RICO derived

from a concern about organized crime’s ability to procure

illegal profits, particularly as a result of mob infiltration

of legitimate businesses. See, e.g., Ivic, 700 F.2d at 61-

21

65. RICO, it was hoped, would take the profit out of

organized crime All of this is undeniable, but wholly

inadequate to support the holding below.

A desire to cripple organized crime and strip it of its

profits may have provided the immediate impetus for con-

gressional action. But this fact does not create any nega-

tive implication about RICO’s intended sweep. Cf. Tur-

kette, 452 U.S. at 591. This Court has emphasized that

RICO’s intended scope should not be confused with the

reasons for its passage.

The occasion for Congress’ action was the perceived

need to combat organized crime. But Congress for

cogent reasons chose to enact a more general

Statute ....

Congress drafted RICO broadly enough to en-

compass a wide range of criminal activity, taking

many different forms and likely to attract a broad

array of perpetrators operating in many different

ways.

H.J., 492 US. at 249-50. See also id. at 245-46

(“Congress was quite capable of conceiving of ‘pattern’

as a flexible concept not dependent on tying predicates

to the major objective of the law”).

Regardless of whether it was specifically anticipated

that RICO might be applied to terrorist organizations

operating with ideological or political motives, what mat-

ters is that Congress acted deliberately in adopting a

statute employing broad terms capable of such applica-

tion. “‘[T]he fact that RICO has been applied in situa-

tions not expressly anticipated by Congress does not dem-

onstrate ambiguity. It demonstrates breadth.” Sedima,

473 U.S. at 499 (quoting Haroco, Inc. v. American Na-

tional Bank & Trust Co. of Chicago, 747 F.2d 384, 398

(7th Cir. 1984) ).

2. When it enacted RICO at Title IX of the Or-

ganized Crime Control Act of 1970, Pub. L. No. 91-452,

84 Stat. 941, Congress provided an explicit declaration

of its purposes that was no less broad than the statute

22

itself. In a preface to the Organized Crime Control Act

of 1970, Congress first made certain “findings” regarding

the perceived problems that had occasioned the need for

the legislation.” 84 Stat. 922-23. It then proceeded

to state the purpose of the legislation. That purpose was

“to seek the eradication of organized crime in the United

States by strengthening the legal tools in the evidence-

gathering process, by establishing new penal prohibitions,

and by providing enhanced sanctions and new remedies

to deal with the unlawful activities of those engaged in

organized crime.” 84 Stat. 923. In sum, RICO’s pur-

poses were “to supplement old remedies and develop new

methods for fighting crime.” Sedima, 473 U.S. at 498.

RICO remedies are necessary to combat the disturbing

trend of vigilantism and violence against medical practi-

tioners and researchers. During the last cight years, over a

dozen health care workers or researchers have been mur-

dered on the job.** There have been more than 100 inci-

dents of vandalism, arson or theft by animal rights activ-

ists..° In many cases, these criminal acts have been

performed by, or with the assistance of, well-funded and

tightly organized enterprises formed for the very purpose

of engaging in medical vigilantism.

An “economic motive” requirement would rtifically

place whole areas of organized criminal activity beyond

13 These findings focused in large measure on the deleterious

effects of organized crime, not on the criminals’ motivations. More-

over, the findings referred not only to the harmful economic effects

of these criminal activities (“weaken the stability of the Nation’s

economic system, harm innocent investors and competing organiza-

tions . . . serious burden on interstate and foreign commerce”)

but also to their harmful effects on safety and welfare (“threaten

the domestic security, and undermine the general welfare of the

Nation and its citizens”). 84 Stat. 922-23. In short, the kinds of

harmful effects that concerned Congress certainly are broad enough

to include the effects of the organized criminal activity alleged by

petitioners here.

14 J, Adams, “After Second Bombing, FBI Warns Academics,”

Chicago Tribune (June 25, 1993), at 2.

15 Td.

ee

23

the reach of RICO. Such a result is inconsistent

with the statute’s language and purposes. As Justice

Stevens has pointed out, political terrorism merits no

special solicitude. United States v. Cullen, 454 F.2d 386,

392 (7th Cir. 1971) (‘“Appellant’s professed unselfish

motivation, rather than a justification, actually identifies

a form of arrogance which organized society cannot toler-

ate”). And the devastating impact that such criminal acts

have on medical practice and research cannot be con-

doned simply because the acts are committed in the

name of some supposedly higher justification.

CONCLUSION

For the reasons stated above, the judgment of the

court of appeals should be reversed.

Of Counsel:

KIRK B. JOHNSON

EDWARD B. HIRSHFELD

MICHAEL L. ILE

AMERICAN MEDICAL

ASSOCIATION

515 North State Street

Chicago, Illinois 60610

(312) 464-5000

ANN E. ALLEN

AMERICAN COLLEGE OF

OBSTETRICIANS AND

GYNECOLOGISTS

409 12th Street, S.W.

Washington, D.C. 20024

(202) 638-5577

August 13, 1993

Respectfully submitted,

JACK R. BIERIG *

DAVID F. GRAHAM

RICHARD D. RASKIN

SIDLEY & AUSTIN

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

CARTER G. PHILLIPS

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Attorneys for Amici Curiae

American Medical Association

and American College of

Obstetricians and

Gynecologists

* Counsel of Record