Petition for Writ of Certiorari — Hartman v. United States

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IN THE JAN @ 1991

Supreme Curt of the United States, .. t SPANIOL JR

OCTOBER TERM, 1990

MICHAEL A. HARTMAN and

BENJAMIN H. Woops,

m Petitioners

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIGRARI

ELLEN M. VIAKLEY *

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 471-2230

Counsel for Petitioner

Michael A. Hartman

JOHN L. DOHERTY

MANIFESTO DOHERTY &

DONAHOE, P.C.

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 471-8893

Counsel for Petitioner

Michael A. Hartman

CHARLES F.. SCARLATA

SCARLATA & PLASTINO

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 765-2855

Counsel for Petitioner

Benjamin H. Woods

* Counsel of Record

RS Seg A TE ARIEL AT ATT AO LETT aT ER soauielentitnetsinaiiadintsiaiennaneee

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

QUESTIONS PRESENTED

1. Whether 18 U.S.C. § 1962(c) is unconstitutionally

vague in its failure to define “pattern” of racketeering

activity?

2. Whether the evidence was sufficient as a matter of

law to prove that Petitioners conducted the affairs of the

enterprise through a pattern of racketeering activity?

(i)

TABLE CF CONTENTS

Page

ee ER EN ey | iv

es wsticaeenmnonnannonipascasononeita 1

eo ccinuascoummineniacusiennhancannih 1

CONSTITUTIONAL PROVISIONS INVOLVED... 2

STATEMENT OF THE CASE ................ ERT ee 2

REASONS FOR GRANTING THE WRIT ............. 6

I. THIS COURT SHOULD RESOLVE THE

QUESTION RAISED BY THE CONCURRING

OPINION IN H.J. INC. v. NORTHWESTERN

BELL TELEPHONE CoO., —— USS. , 109

S.Ct. 2893 (1989) REGARDING THE CON-

STITUTIONALITY OF THE RICO STATUTE... 6

II. THERE IS A NEED FOR GUIDANCE FROM

THIS COURT ON THE IMPORTANT CON-

STITUTIONAL QUESTION OF WHEN, IF

AT ALL, A CRIMINAL STATUTE MAY BE

SUBJECT TO FACIAL ATTACK’ FOR

TG ial ca bstiiehisabankinsconadeseqannnniinevanansen 9

III UNCERTAINTY REGARDING THE SCOPE

OF 18 U.S.C. §1962(c) HAS BEEN IN-

CREASED BY CONFLICTING DEFINITIONS

OF THE REQUIRED NEXUS BETWEEN

THE ENTERPRISE AND THE RACKET-

UY ETE EE Macc <cccncnncnancnceenctivevscaceaces een 14

Neen ees cnbdeccscscncnns lasavanstenadeais 18

APPENDIX

Judgment Order and Opinion of the Court of

Ce wcsahsintadaibasincns la

Order and Opinion of the District Court ............. .. 28a

EE I i 24a

Nee cceunnsusicnsbionbeiweacsose 25a

I 25a

Article 3, Home Rule Charter, City of Pittsburgh. 26a

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Adelphi Institute, Inc. v. Terranova, No. 89 Civ.

7203 (S.D. N.Y., filed March 21, 1990), 1990

U.S. Dist. LEXIS RAR aa 8

Aldridge v. Lily-Tulip, Inc., 741 F. Supp. 906 (S.D.

is I ee oa aeininicenineuaeins 7

Beck v. Edward D. Jones & Co., 735 F.Supp. 903

Ee RE SERN: ag ENE oe ee Fee ee nae 8

The Chase Manhattan Bank v. Malatesta, No. &6

Civ. 1808 (S.D. N.Y., filed July 6, 1990), 1990

tk Se Rs 8 UNE ene 7

Colautti v. Franklin, 439 U.S. 379 (1979) ......00....... 9

Entick v. Carrington, 19 Howell’s St. Tr. 1029

(3TGS) ......... ERPRUAL Cs Ram Bra enVAcle 01 RAIL” PO RCONE COC C 12

Friedman v. Arizona World Nurseries Limited

Partnership, 730 F.Supp. 521 (S.D. N.Y. 1990) .. 7

Giacco v. Pennsylvania, 382 U.S. 399 (1966) ........ 12

H.J. Inc. v. Northwestern Bell Telephone Co.,

US. , Rae ae eee Chee? ......................... passim

H.J. Inc. v. Northwestern Bell Telephone Co., 734

F.Supp. 879 (D. Minn. 1990) ...................0000000... 7

Hall American Center Associates Limited Partner-

ship v. Dick, 726 F.Supp. 1083 (E.D. Mich.

SI cistaccesceshitidecencscscilentahininighssaiintGaacdibabiiehdasnaasiccsiaabiehietis 7

Hindes v. Castle, 740 F.Supp. 327 (D.Del. 1990)... 7

Hoffmann Estates v. Flipside, Hoffman Estates,

ee es SE WIE detcsnccecatn alias So ccnbie cancion 10, 13

In Re: Ethanol Plants Securities Litigation, MDL

Dkt. No. 679 (W.D. Mo., filed November 14,

1989), 1989 U.S. Dist. LEXIS ty ae 8

Kauffmann v. Yaskowitz, No. 85 Civ. 8414 (S.D.

N.Y., filed April 6, 1990), 1990 U.S. Dist. LEXIS

I a a ee ln a ce a 8

Kolender v. Lawson, 461 U.S. 362. (1988) ............... passim

Lanzetta v. New Jersey, 306 U.S. 451 (1939) _...... 11

Levin-Richmond Terminal Corp. v. International

Longshoreman’s Union, No. C-90-1460 (N.D.

Ca., filed November 19, 1990), 1990 U.S. Dist.

LEXIS 16335 ........ Sakaceeactaesadielesaeciaaate nada venue aidasaaaneon 7

Marcus v. Property Search Warrants, 367 U.S.

ee ROSEN enrrecsonm eee TRCN De aN 12

v

TABLE OF AUTHORITIES—Continued

Page

Minpeco, S.A. v. Hunt, 724 F.Supp. 259 (S.D. N.Y.

UI incascecacenns tesa esr i ae 8

Nagel v. First Michigan Corp., No. 4:89-CV-114

(W.D. Mich., filed December 3, 1990), 1990 U.S.

Bs I a a 7

New York v. Ferber, 458 U.S. 747 (1982) ............. 10

Newmyer v. Philatelic Leasing, Ltd., 888 F.2d 385

RRs ae A ee 7

Orchard Hills Cooperative Apartments, Inc. v.

Germania Federal Savings & Loan Association,

720 F.Supp. 127 (C.D. Til. 1969) ......................... 8

Papachristou v. City of Jacksonville, 405 U.S. 156

{| PEST ane OOM MT Deed 29 ee OEY OPI Pe TERN 11,13

Smith v. Goguen, 415 U.S. 556 (1974) 000. 11

Uniroyal Goodrich Tire Co. v. Munnis, Civil Ac-

tion Nos. 89-2690, 89-4585 (E.D., Pa., filed April

12, 1990), 1990 U.S. Dist. LEXIS 4320 _............. 8

United States v. Andrews, 749 F.Supp. 1520 (N.D.

ie PD socxncnellsancateangauieesaipateicaeieee ean ak 7

United States v. Angiulo, 897 F.2d 1169 (1st Cir.

1990) .......... APA ON MN ne ks ok ai 7

United States v. Bailin, No. 89 CR 668 (N.D. IIL,

filed July 17, 1990), 1990 U.S. Dist. LEXIS

RCP CLC ENED” hati Nee Otae tae Peet SEG. = Win MUTE Se 7

United States v. Blackwood, 768 F.2d 131 (7th

Cir. 1985), cert. den., 474 U.S. 1020 .....0000.0000... 15

United States v. Busacca, 739 F.Supp. 370 (N.D.

| RRR Sveti En nee RS 8

United States v. Carter, 721 F.2d 1514 (11th Cir.

ND oo iintictldiceaias es acd eee einer eames 16

United States v. Cauble, 706 F.2d 1322 (5th Cir.

1983), cert. den., 474 U.S. 994 .......00002oec ce... 15

United States v. Eisen, No. CR-90-0018 (E.D.

N.Y., filed October 19, 1990), 1990 U.S. Dist.

LEXIS 14219 ............ EE PEO aD ON OND 7

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

1986), cert. den., 479 U.S. 987 ............................ 15

United States v. Gatto, 746 F.Supp. 432 (D. N.J.

IE nnicetkesseciececae ai ear ae en 7

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Jannotti, 729 F.2d 213 (3d Cir.

1984), cert. den., 469 U.S. 880 ......00..0 cn... 15

United States v. Johnston, 268 U.S. 220 (1925) ...... 14

United States v. Lobue, No. 90 CR 726 (N.D. IIL,

filed November 20, 1990), 1990 U.S. Dist. LEXIS

ER CE ee ee Re pr NE AR ei et Be eS 7

United States v. Paccione, 738 F.Supp. 691 (S.D.

ee NMR eenc irra ree NNNN ERR Aastra a8 7-5 ORDO ee 8

United States v. Powell, 423 U.S. 87 (1975) ........... 9

United States v. Pungitore, 910 F.2d 1084 (3d Cir.

RRA ee RMON CREE eat nee OYUN CLUE AEA 7,13

United States v. Scotto, 641 F.2d 47 (2d Cir.

ROD; COPE. Gam, GE Tides GE ovnscvscckasseseceeceeccinssns 15, 16

United States v. Young & Rubicam, Inc., 741

een GA its IU sacakecdetts cncnscatbomacbnieseneanee 8

United States Textiles, Inc. v. Anheuser-Busch

Companies, Inc., No. 89-1296 (7th Cir. 1990,

filed August 31, 1990), 1990 U.S. App. LEXIS

II nctcratbshiscn indebted nemneatchehibaingnbiediatdtiddniaiatidebicneed 7

Wilson v. Askew, 709 F.Supp. 146 (W.D. Ark.

BID snnsxhsiminnceaskcisntsaicsndanitoeshitonnineiuwesiaeonasbuevnabantiein - 7

Statutes

18 U.S.C. § 1961, et SOQ. ooo... ooo oooooooooooooo ooo ee eee 2

18 U.S.C. § 1962 (6) ooo... ee cece eee eee passim

18 Pa.C.S. § 4701 200. Seen pauevanacekuseusoence 2

35 Pa.C.S. § 1545 ooo ccc cece cc ccce cece eee ee cece eee eee 17

Treatises

Tribe, American Constitutional Law (2d Ed.

BIE pisnsisscnsnatneanercsanassancrsaysancnstcenuusueeesisatemenaeeasuenaies 10

Law Review Articles

Jeffries, “Legality, Vagueness and the Construc-

tion of Penal Statutes’, 71 Va.L.R. 187 (1985).. 12

:

; IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

MICHAEL A. HARTMAN and

BENJAMIN H. Woops,

Petitioners

Ve

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Michael A. Hartman and Benjamin H.

Woods respectfully request that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Third Circuit, entered on October 1, 1990.

OPINIONS BELOW

The opinion of the court of appeals is reported at 915

F.2d 854 and is reprinted in the appendix, infra, at 26a.

The district court’s opinion is unreported and is reprinted

in the appendix, infra, at 25a.

JURISDICTION

Petitioners were charged by indictment in the United

States district court with violating federal criminal

statutes. Judgment of conviction was entered by the

district court on January 19, 1990 as to Petitioner Hart-

2

man and on January 18, 1990 as to Petitioner Woods.

On October 1, 1990 the court of appeals entered its judg-

ment affirming the convictions.

The jurisdiction of this Court to review the judgment

of the court of appeals is invoked under 2& U.S.C.

$ 1254'a) and Supreme Court Rule 20.1.

~ CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall be . . . deprived of life, liberty or

property, without due process of law.

STATEMENT OF THE CASE

This case involves application of section 1962(c) of the

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. 1961, et seg., to an alleged “pattern” of bribery

involving Petitioners Hartman and Woods. The Pitts-

burgh City Council, of which Woods was an elected mem-

ber, is named as the RICO enterprise.’

The central allegation of the indictment is that Woods

unlawfully bartered the exercise of his discretion as a

member of City Council in return for pecuniary benefits

from Hartman and an vunindicted co-conspirator, Joseph

Wozniak. The predicate racketeering acts are all charged

under the Pennsylvania bribery statute, 18 Pa.C.s.

$4701.

Among the pre-trial motions filed on Petitioners’ behalf

was a Motion to Dismiss the indictment on the grounds

that 18 U.S.C. §$ 1962+¢) was facially void for vagueness.

25a. The motion was denied by the district court from the

bench in the course of pre-trial proceedings. 24a.

‘The Pittsburgh City Council is the legislative branch of city

government. Its powers and duties, /.¢e., its “affairs”, are defined at

Article 3 of the Home Rule Charter of the City of Pittsburgh. 26a,

Two separate axes of unlawful activity are deseribed

in the indictment. The first axis involves Woods’ relation-

ship with Petitioner Miehael A. Hartman, Hartman was

president and owner of Ablebuilt) Construetion Co., Ine.,

whieh was the sueeessful bidder on a number of con-

struction and rehabilitation projects for the Housing

Authority of the City of Pittsburgh and for the Urban

Redevelopment Authority.

In addition to his public duties as a member of the

Pittsburgh City Council, Woods was also on the Board

of Directors of the Housing Authority of the City of

Pittsburgh. The Housing Authority is an independent

body politie that receives its funding from the federal

government, Testimony at trial established that City

Council does not control the Authority’s funding and

has no role in approving monies that come through a

cooperation agreement between the City and the federal

government. That the conduct of the Housing Author-

ity’s business is not within the ambit of the affairs of

City Council is significant to the question presented re-

garding the required nexus between the racketeering ac-

tivity and the affairs of the enterprise.

At trial the government’s principal witness, Louis

Bilotta, testified that he delivered a number of cash pay-

ments from Hartman to Woods.? Almost without excep-

tion, the payments were related to Hartman’s requests

for Woods’ help in resolving potential snags in the ad-

ministration of ongoing contracts between Ablebuilt and

the Housing Authority. Several payments, for example,

were accompanied by a request for Woods’ help in ob-

taining the release of progress payments for projects al-

ready under construction. The Director of the Housing

Authority testified that he received a call from Woods,

whom he regarded as “‘one of my bosses” by virtue of his

* Both Hartman and Woods, who were business partners in a

restaurant venture, took the stand and hotly disputed Bilotta’s

testimony regarding improper payments. Given the jury's verdict,

however, Bilotta’s testimony must be accepted at face value.

a

4

seat on the Authority’s Board, regarding the delay in

processing Ablebuilt’s payments.

There were only two payments testified to by Bilotta

that did not involve the administration of Hartman’s

contracts with the Housing Authority. One payment re-

lated to Hartman’s request that Woods call the Director

of the Urban Redevelopment Authority and ask him te

“take it easy’ on Hartman during a scheduled meeting

to discuss one of Hartman’s contract proposals.

The URA is a statutory agency which uses federal

funds to stimulate development of privately owned hous-

ing in the City of Pittsburgh. The program under which

federal dollars to encourage renovation of rental proper-

ties by private owners. There is no functional link be-

tween the URA and City Council.

The second payment was given to Bilotta to deliver to

Woods with the message that Hartman’s brother was

going to take a licensing exam administered by the De-

partment of Building Inspection. There was no testimony

regarding what Woods is supposed to have done as con-

sideration for this payment.

The second axis described in the indictment involves

Woods’ relationship with Joseph Wozniak, an unindicted

co-conspirator who was in the business of. selling water-

proofing products. Woods and Wozniak had an agree-

ment under which Woods received a 10% commission on

sales Wozniak made as the result of Woods’ “opening

doors”. Three of the.racketeering acts allege that Woods

wrongfully bartered the exercise of his discretion as a

public servant in assisting Wozniak with sales to the

Three Rivers Stadium Authority, the Allegheny County

Sanitary Authority, and the general contractor on the

Bloomfield Bridge project. Testimony indicated that

Woods called the Directors of the two agencies and asked

them to meet with Wozniak and, further, that he called

the chief engineer on the bridge project on Wozniak’s

ee

5

behalf. Neither these entities nor their activities were

demonstrably connected to the affairs of City Council.

The Director of the Allegheny County Sanitary

Authority testified that he agreed to meet with Wozniak

because Woods was a friend. The Director of the Sta-

dium Authority testified that he agreed to meet with

Wozniak because he ‘owed’ Woods; the basis for his

perceived indebtedness was not identified.

The jury adjudicated Petitioners guilty of conducting

the affairs of the Pittsburgh City Council through a pat-

tern of racketeering activity. Judgement of conviction

was imposed; Petitioners were sentenced to substantial

terms of imprisonment; and the convictions were affirmed

by the court of appeals.

6

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD RESOLVE THE QUESTION

RAISED BY THE CONCURRING OPINION IN H.J/.

INC. v. NORTHWESTERN BELL TELEPHONE CO.,

— US. —, 109 S.Ct. 2893 (1989) REGARDING THE

CONSTITUTIONALITY OF THE RICO STATUTE.

In H.J. Inc. v. Northwestern Bell Telephone Co.,

U.S. , 109 8.Ct. 2893 (1989), this Court reviewed

—and endeavored to refine—the scope of the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C.

$1961, et seg. The “pattern” requirement of section

1962 was the term particularly at issue, and the Court

defined it to require a showing of “continuity plus rela-

tionship”. Jd., 109 S.Ct. at 2900.

The coneurring opinion by four Justices of the Court

found this definition to be about as helpful in construing

the meaning of the statute as to say, “life is a fountain’’.

Td., 109 S.Ct. at 2907. The concurrence went on to raise

a direct challenge to the constitutionality of the statute

on vagueness-grounds:

No constitutional challenge to this law has been

raised in the present case, and so that issue is not

before us. That the highest Court in the land has

been unable to derives from this statute anything

more than today’s meager guidance bodes ill for the

day when that challenge is presented.

Id. at 2908.

Review of the case law decided after H.J. Inc. indicates

that the opinion has produced a result contrary to the

Court’s presumed intent in agreeing to review the stat-

ute: as the direct result of the decision, confusion regard-

ing proper application of the statute has intensified,

rather than abated.

Confusion having its origin in the majority opinion is

manifest in the tower courts’ struggles to identify the

7

Castor and Pollux of “continuity” and “relationship”.’

In response to the concurring opinion, lawyers are

obediently raising constitutional challenges to the statute

at every turn.’

* See, for example, Hindes v. Castle, 740 F.Supp. 327 (D.Del.

1990), reviewing at length the problems encountered by lower

courts in attempting to apply the majority’s definition. See, also,

United States Textiles, Inc. v. Anheuser-Busch Companies, Inc.,

No. 89-1296 (7th Cir. 1990, filed August 31, 1990), 1990 U.S. App.

LEXIS 15519 (“amorphous concept” of continuity still “not clear’) ;

Hall American Center Associates Limited Partnership v. Dick, 726

F.Supp. 1083 (E.D. Mich. 1989) (pattern requirement “continues

to spawn considerable case law, commentary, and confusion’’) ;

Friedman v. Arizona World Nurseries Limited Partnership, 730

F.Supp. 521 (S.D. N.Y. 1990) (attempting to apply “continuity”

requirement in evaluating sufficiency of civil pleading); Wilson v.

Askew, 709 F.Supp. 146 (W.D. Ark. 1989) (same).

' See, for example: United States v. Angiulo, 897 F.2d 1169

Ist Cir. 1990) (RICO not vague as applied to La Casa Nostra) ;

Newmyer v. Philatelic Leasing, Ltd., 888 F.2d 385 (6th Cir. 1989)

(remand for consideration of statute’s constitutionality, noting that

the “proper resolution of RICO’s constitutionality is not beyond any

doubt”) ; United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990)

(RICO not vague as applied); Nagel v. First Michigan Corp., No.

4:89-CV-114 (W.D. Mich., filed December 3, 1990), 1990 U.S. Dist.

LEXIS 16192 (vagueness issue not reached); H.J. Inc. v. North-

western Bell, 734 F.Supp. 879 (D. Minn. 1990) (on remand, case

dismissed without reaching the “important and intringuing ques-

tion of the constitutionality of RICO”) ; Levin-Richmond Terminal

Corp. v. International Longshoreman’s Union, No. C-90-1460 (N.D.

Ca., filed November 19, 1990), 1990 U.S. Dist. LEXIS 16335:

United States v. Lobue, No. 90 CR 726,(N.D. IIl., filed November 20,

1990), 1990 U.S. Dist. LEXIS 16210 (statute not vague as applied) ;

United States v. Eisen, No. CR-90-0018 (E.D. N.Y., filed October 19,

1990), 1990 U.S. Dist. LEXIS 14219 (statute vague only at “outer

reaches”) ; United States v. Andrews, 749 F.Supp. 1520 (N.D. IIL.

1990) (refusing to consider facial attack); United States v. Gatto,

746 F.Supp. 432 (D. N.J. 1990) (not vague das applied to organized

crime family); United States v. Bailin, No. 89 CR 668 (N.D. IIl.,

filed July 17, 1990), 1990 U.S. Dist. LEXIS 9168: The Chase Man-

hattan Bank v. Malatesta, No. 86 Civ. 1808, July 6, 1990 (S.D.

N.Y.), 1990 U.S. Dist. LEXIS 9222 (constitutionality cf RICO

“close question”); Aldridge v. Lily-Tulip, Inc., 741 F.Supp. 906

cick iat aaa i i ee

8

Petitioners respectfully submit that in the wake of

IT.J. Inc., the Court is obliged to clear the air on the

question of RICO’s constitutionality. This case would

give the Court the opportunity to resolve the threshold

cuestion presented: is the statute unconstituticnally

vague on its face? The issue is cleanly drawn and would

permit straightforward resolution of one of the funda-

mental questions confronting the lower courts.

If the Court were to hold that the statute is facially

void, the questions raised by the concurrence would be

resolved once and for all. In the alternative, a holding

that the statute is not facially void would comprise a

significant step in the process of clarification made neces-

sary by the concurrence. Petitioners therefore respect-

fully request that a writ of certiorari issue to review the

judgment of the court of appeals.

(S.D. Ga. 1990); United States v. Paccione, 738 F.Supp. 691 (S.D.

N.Y. 1990); Beck v. Edward D Jones & Co, 735 F.Supp. 903 (C.D.

Ill. 1990); Uniroyal Goodrich Tire Co. v. Munnis, Civil Action Nos.

89-2690, 89-4585 (E.D. Pa., filed April 12, 1990), 1990 U.S. Dist.

LEXIS 4320; Kauffmann v. Yoskowitz, No. 85 Civ. 8414 (S.D. N.Y.,

filed April 6, 1990), 1990 U.S. Dist. LEXIS 3752; Adelphi Institute,

Inc. v. Terranova, No. 89 Civ. 7203 (S.D. N.Y., filed March 21,

1990), 1990 U.S. Dist. LEXIS 3066; United States v. Busacca, 729

F.Supp. 370 (N.D. Oh. 1990); United States v. Young & Rubicam,

Inc., 741 F.Supp. 334 (D. Ct. 1990); Minpeco, S.A. v. Hunt, 724

F.Supp. 259 (S.D. N.Y. 1989); Orchard Hills Cooperative Apart-

ments, Inc. v. Germania Federal Savings & Loan Association, 720

F.Supp. 127 (C.D. fll. 1989); In Re: Ethanol Plants Securities

Litigation, MDL Dkt. No. 679 (W.D. Mo., filed November 14, 1989),

1989 U.S. Dist. LEXIS 13717 (abandonment of civil RICO claim

would be “understandable” in light of the concurrence).

9

II. THERE IS A NEED FOR GUIDANCE FROM THIS

COURT ON THE IMPORTANT CONSTITUTIONAL

QUESTION OF WHEN, IF AT ALL, A CRIMINAL

STATUTE MAY BE SUBJECT TO FACIAL ATTACK

FOR VAGUENESS.

The court of appeals rejected Petitioners’ facial chal-

lenge to the validity of section 1962(c), holding that out-

side of a First Amendment context a defendant may

raise a vagueness challenge “only if the challenged stat-

ute is vague as to that party’s conduct”. 18a. Because

Petitioners did not contend that First Amendment values

were implicated by application of the RICO statute, the

court held that Petitioners were “confined to a challenge

that the statute is unconstitutional in its application to

their specific conduct”. 18a.

This opinion is disruptive for several reasons. First,

it disregards precedent from this Court upholding facial

challenges to the vagueness of criminal statutes outside

a First Amendment context. See, Colautti v. Franklin,

439 U.S. 379, 394-401 (1979) (criminal sanctions in

abortion statute facially vague). See also, United States

v. Powell, 423 U.S. 87, 92 (1975) (statute which fails to

proscribe a “comprehensible course of conduct . .. may

not constitutionally be applied to any set of facts’’).

Kolender v. Lawson, 461 U.S. 352 (1983) reviewed a

vagueness challenge to a criminal ordinance raised by

means of a civil action for declaratory and injunctive re-

lief. The case, by definition, excluded consideration of

the ordinance ‘‘as applied”, but the absence of a factual

predicate regarding the statute’s application was irrele-

vant to the Court’s consideration. In Kolender the Court

found the ordinance to be facially void for vagueness.

The court of appeals’ decision effectively adopted and

brought into law the dissenting opinion in Kolender,

which argued that a criminal statute cannot be chal-

lenged as constitutionally vague unless it is impermis-

sibly vague in all of its applications. If the Court per-

10 |

mits the principles of the Kolender dissent to become law |

by insinuation, the questions presumably answered by

the Kolender majority will remain open and unresolved.

The decision below is symptomatic of uncertainty in

the lower courts regarding the principles applicable to

facial challenges for vagueness. In reaching its holding,

the court of appeals cited New York v. Ferber, 458 U.S.

747 (1982) as authority for the proposition that a de-

fendant may not present a facial vagueness challenge

outside a First Amendment context. Petitioners would

contend that the court’s reliance on Ferber is misplaced.

Ferber was an overbreadth case, not a vagueness case.

Whether a statute includes within its sweep a substantial

amount of constitutionally protected conduct is a classic

statement of overbreadth analysis. Such analysis has no

relevance to the vagueness issue presented here.

Although this Court has noted an interrelationship be-

tween vagueness and overbreadth, constitutionally sig-

nificant distinctions remain. In the view of one of our

leading scholars: ‘“Vagueness is a constitutional vice

conceptually distinct from overbreadth in that an over-

broad law need lack neither clarity nor precision, and a

vague law need not reach activity protected by the first

amendment.” Tribe, American Constitutional Law, § 12-

31, p. 1033 (2d Ed. 1988).

The failure of lower courts to apprehend such distinc-

tions has muddied the waters of constitutional adjudica-

tion in this area. The distinctYn was also blurred by the

Court in Hoffman Estates v. Flipside, Hoffman Estates,

Inc., supra, holding that, “In a facial challenge to the

overbreadth and vaqueness of a law, a court’s first task

is to determine whether the enactment reaches a substan-

tial amount of constitutionally protected conduct.” Hoff-

man Estates, supra, 455 U.S. at 494 (emphasis added).

The constitutional vice of overbreadth centers on a

legislative effort to proscribe something that the Consti-

ee

11

tution protects. At issue are legislative acts of commis-

sion—affirmative attempts to forbid constitutionally pro-

tected activities. As noted previously, whether a statute

includes within its sweep a substantial amount of consti-

tutionally protected conduct is a classic statement of

overbreadth analysis.

Vagueness challenges are based on acts of legislative

omission—a failure to provide the clarity and definite-

ness required by the due process clause.

The concepts overlap in the case of a statute which,

because of its failure to define proscribed conduct with

sufficient clarity, may be interpreted to reach constitu-

tionally protected activity. That is not the basis of Peti-

tioners’ challenge to section 1962(¢). What is presented

here is a pure due process attack.

Two objectives have traditionally been ascribed to the

due process requirement of clarity and definiteness in

criminal statutes. The first focuses on the individual

offender, requiring that the law provide actual notice to

citizens of exactly what conduct is prohibited, in terms

sufficiently precise that persons of reasonable intelligence

need not guess at their meaning. Lanzetta v. New Jer-

sey, 306 U.S. 451, 453 (1939).

Second, due process requires that criminal statutes

provide explicit standards in order to preclude the pos-

sibility of arbitrary or discriminatory enforcement. This

concern is not restricted to consideration of the law as

it applies to the individual offender, but has a broader,

institutiona! focus. See, Kolender v. Lawson, supra, 461

U.S. at 361 (statute facially void because it would en-

courage arbitrary enforcement); Smith v. Goquen, 415

U.S. 556, 575 (1974) (statute which fails to provide

“clear guidelines” and thus “allows policemen, prosecu-

tors and juries to pursue their personal predilections”

violative of due process); Papachristou v. City of Jack-

sonville, 405 U.S. 156, 169 (1972) ‘absence of clear

19

A hat

standards governing the exercise of enforcement discre-

tion “permits and encourages an arbitrary and discrim-

inatory enforcement of the law.”); Giacco v. Pennsyl-

vania, 382 U.S. 399, 402-03 (1966) (statute which leaves

judges and jurors free to decide guilt or innocence with-

out reference to “legally fixed standards” fails to meet

the requirements of the due process clause).

The constitutional imperative to provide explicit stand-

ards for law enforcement is “the more important aspect

of the vagueness doctrine.” Kolender v. Lawson, supra,

461 U.S. at 358. In Kolender the Court relied solely on

this due process imperative in concluding that the statute

was facially void. /d. at 361.°

The issue is similar to that presented in a Fourth

Amendment context. At the core of the Fourth Amend-

ment’s warrant requirement is the constitutional prohibi-

tion against the exercise of arbitrary governmental

power. Marcus v. Property Search Warrants, 367 U.S.

717, 728-29 (1961). This core value has historically led

the Court to treat general warrants as void ab initio, be-

cause the power they confer is unrestricted and, there-

fore, arbitrary. Entick v. Carrington, 19 Howell’s St.

Tr. 1029, 1067-68 (1765). How such warrants are ap-

plied, 7.e., whether the search conducted under a general

warrant was reasonable, is irrelevant. The constitu-

tional value at stake centers on the nature of the power

conferred.” That is precisely the issue presented here.

* Legal commentators agree that the preclusion of arbitrary en-

forcement is the “most persuasive justification for vagueness re-

view.” Jeffries, “Legality, Vagueness and the Construction of Penal

Statutes”, 71 Va.L.R. 187, 218 (1985). Professor Jeffries finds the

notice aspect of the vagueness doctrine to be “chimeral’, id. at 210,

and discusses at some length the “abstracted and artificial character

of the rhetoric of ‘fair warning.’” Jbid.

® See, e.g., United States v. Marti, 421 F.2d 1263, 1268-69 (2d

Cir. 1970) (that agents executing a general warrant seized only

those obiects which were, in fact, contemplated by the warrant

affidavit, “does not erase the fact that appellants were subject under

these warrrants to a greater exercise of power”).

Although Kolender was the decision primarily relied

on by Petitioners before the court of appeals, that court

did not give even passing mention to the case in its opin-

ion. Nor did it address Kolender in a predecessor opin-

ion which similarly refused to consider a facial challenge

to section 1962. See, United States v. Pungitore, 910

F.2d 1084 (3d Cir. 1990).

Further, in defining the due process requirements im-

plicated by Petitioners’ vagueness challenge, the court of

appeals acknowledged only the “actual notice’’ component

of the clause, restricting its inquiry to “the question of

whether a person of reasonable intelligence would know

that the conduct we have described constitutes a pattern

of racketeering activity.”” 20a. The due process require-

ment that statutes provide fixed standards in order to

preclude the possibility of arbitrary enforcement—a re-

quirement acknowledged by this Court as the “more im-

portant aspect of the vagueness doctrine’”—was wholly

ignored in the opinion.

Among the questions which could be resolved by a

grant of certiorari are the following:

1. Does the question whether a statute “includes

within its sweep a substantial amount of consti-

tutionally protected conduct” have any relevance—

to a facial attack on statutory vagueness?

bo

What are the constitutionally relevant distinctions

between overbreadth and vagueness analyses?

May vagueness standards applicable to economic

regulation, e.g., Hoffman Estates v. Flipside,

Toffman. Estates, Inc., supra, properly be applied

to criminal statutes? ‘

c+

-~

.

!. Does the Court’s statement in United States v.

Powell, supra, that a statute which fails to define

7C.f., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

(regarding due process requirements of clarity and definiteness,

greater leeway is allowed in the field of economic regulation).

14

a comprehensible court of conduct is facially void

comprise pure dicta, or is it a valid parameter of

constitutional analysis?

This case presents a clear predicate for clarification of

the circumstances under which a criminal statute may be

subject to a facial attack for vagueness. Resolution of

the questions presented would substantially narrow the

range of litigable issues and ensure uniformity and con-

sistency in constitutional adjudication. Petitioners there-

fore respectfully request that a writ of certiorari issue to

review the judgment of the court of appeals.

Ill, UNCERTAINTY REGARDING THE SCOPE OF 18

U.S.C. § 1962(c) HAS BEEN INCREASED BY CON-

FLICTING DEFINITIONS OF THE REQUIRED

NEXUS BETWEEN THE ENTERPRISE AND THE

RACKETEERING ACTIVITY.

A further area of controversy under the RICO statute

involves the standard to be applied in assessing the suf-

ficiency of proof that a defendant conducted the affairs

of the enterprise through a pattern of racketeering ac-

tivity. The issue arises here in the form of a challenge

to the sufficiency of proof that the affairs of the Pitts-

burgh City Council were conducted through a pattern of

bribery.

In presenting this question for review, Petitioners are

not asking the Court simply “to review evidence and dis-

cuss specific facts.” United States v. Johnston, 268 U.S.

220, 227 (1925). Although the issue is clothed in fact,

it remains an essential question of law. Efforts to define

the required nexus between the enterprise and the rack-

eteering activity have produced conflicting results. The

only way such conflicts can be resolved is for the Court

to define the legal quantum of proof necessary to meet

this element of the charge. The only way such a stand-

ard could be defined is by reference to a factual record.

Certain characteristics of the factual record here com-

mend this case as a particularly effective vehicle for re-

‘ pecaieieiiieraien ee nent Ni

15

' view. The question whether the affairs of the enterprise

Ts were conducted through a pattern of racketeering activ-

ity requires, first, some definition of what the enterprise’s

affairs are. The more precise the definition of “enter-

prise affairs”, the clearer the prism through which the

nexus issue will be refracted. That definition is provided

here by Article 3 of the Home Rule Charter of the City ~

of Pittsburgh, which delineates and restricts the “af-

fairs” of City Council to express legislative powers that

may only be exercised at public meetings. 26a-29a. It is

doubtful that a more precise definition—or better ana-

lytical prism—could be found.

The conflicts which require resolution are found in the

case law of the following circuits. The Fifth, Seventh

and Eighth Circuits have held that proof of nexus re-

quires two elements: (1) that the defendant was enabled

to commit the rackeieering activity solely by virtue of his

position in the enterprise; and (2) that the racketeering

activity affected the function of the enterprise. United

States v. Cauble, 706 F.2d 1322, 1331-32 (5th Cir. 1983),

cert. den. 474 U.S. 994; United States v. Blackwood, 768

F.2d 131, 138 (7th Cir. 1985), cert. den., 474 U.S. 1020;

and United States v. Ellison, 793 F.2d 942, 950 (8th

Cir. 1986), cert. den., 479 U.S. 937.

The Second Circuit has phrased the same elements in

the disjunctive, finding the nexus requirement to be sat-

isfied either upon proof that defendant was enable to

commit the racketeering activity solely by virtue of his

position in the enterprise or upon proof that the racket-

eering activity affected the function of the enterprise.

United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980),

cert. den. 452 U.S. 961.

The Third Circuit has cited with approval cases from

both schools of thought. United States v. Jannotti, 729

F.2d 213, 226 (3d Cir. 1984), cert. den., 469 U.S. 880

(citing both Scotto and Cauble, supra). The Eleventh

Circuit has found sufficient nexus with proof that the

16

facilities and services of the enterprise were “regularly

and repeatedly utilized to make possible the racketeering

activity.” United States v. Carter, 721 F.2d 1514, 1527

(lith Cir. 1984) .°

Given the statute’s primary focus on “the conduct of

[the] enterprise’s affairs”, 18 U.S.C. § 1962(c), Peti-

tioners would contend that a definition of nexus that does

not require proof of the racketeering activity’s affect on

enterprise affairs disserves the legislative purpose.

Notably, the record here would not be sufficient to sus-

tain the conviction under any of the above-cited cases.

The RICO enterprise was identified as the Pittsburgh

City Council. It was therefore incumbent on the govern-

ment to prove that the affairs of City Council were con-

ducted through a pattern of racketeering activity. How-

ever, the only evidence regarding the affairs of City

Council was the introduction of Council minutes record-

ing Woods’ oath of office and the introduction of various

“warrants” authorizing payment of items purchased by

Council in interstate commerce. The warrant items bear

no relation to any of the projects or incidents referenced

in the indictment. The only other testimony by or about

City Council concerned two occasions on which Woods

asked a messenger employed by Council to cash two of

Wozniak’s checks for him at the bank.

There is no evidence that the bribes identified in the

indictment and testified to at trial had any affect on the

affairs of City Council. To the contrary, the payments

all related to matters within the exclusive jurisdiction

of independent public agencies—the Housing Authority,

the Urban Redevelopment Authority, the Three Rivers

Stadium Authority and Alcosan. :

Nor is the required nexus demonstrated even under the

first prong of Scotto’s disjunctive standard, requiring

8 The jury here was given only the statutory language to consider

in evaluating the evidence.

hieaeaieneaacai it

17

proof that the defendant was enabled to commit the pred-

icate offenses solely by virtue of his position in the enter-

prise. It was Woods’ position on the Board of Directors

of the Housing Authority that was of value to Hartman,

not his seat on City Council. Woods qualified for that

appointment solely by virtue of the fact that he was a

resident of the City of Pittsburgh. 35 Pa.C.S. § 1545.

Regarding Woods’ contacts with the Stadium Authority

and Alcoson on Wozniak’s behalf, there is similarly no

proof that Woods was able to arrange meetings with

these agencies solely by virtue of his seat on Council.

RICO left the drafting table something less than a

model of clarity. Conflicting circuit opinions on the is-

sue of nexus have added to the interpretative difficulties

surrounding the statute. Because resolution of such con-

flicts is necessary to provide a measure of predictability

and uniformity to the statute’s application, and because

this case is well constructed to enable the Court to

achieve such resolution, Petitioners respectfully request

that a writ of certiorari issue to review the judgment of

the court of appeals.

18

CONCLUSION

For these reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

ELLEN M. VIAKLEY *

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 471-2230

Counsel for Petitioner

Michael A. Hartman

JOHN L. DOHERTY

MANIFESTO DOHERTY &

DONAHOE, P.C.

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 471-8893

Counsel for Petitioner

Michael A. Hartman

CHARLES F’. SCARLATA

SCARLATA & PLASTINO

1550 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219

(412) 765-2855

Counsel for Petitioner

Benjamin H. Woods

APPENDIX

a

la

APPENDIX

Filed October 1, 1990

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 90-3044, 90-3045, 90-3046

UNITED STATES

VS.

BENJAMIN H. Woops,

Appellant in No. 90-3044

MICHAEL A. HARTMAN,

Appellant in No. 90-3045

ABLEBUILT CONSTRUCTION COMPANY, INC.,

a/k/a Ablebuilt Homes, Inc.,

Appellant in No. 90-3046

6 ene

On Appeal from the United States District

Court for the Western District

of Pennsylvania

(D.C. Criminal Nos. 89-00061-1,

89-00061-2, 89-00061-3)

Nhe as A PERS RUN Gi. tes Ge Ris sha RAT ed, oS

Argued August 13, 1990

BEFORE: MANSMANN, GREENBERG, and

SEITZ, Circuit Judges

(Filed: October 1, 1990)

2a

OPINION OF THE COURT

GREENBERG, Circuit Judge.

On June 22, 1989, appellants Benjamin Woods, Michael

Hartman, and Ablebuilt Construction Co., were charged

in twenty-nine count indictment which included a RICO

count under 18 U.S.C. § 1962(c), the City Council of

-ittsburgh being the RICO enterprise, numerous Hobbs

Act counts and tax counts, arising from public corruption

in the Pittsburgh area.' They were all convicted on

1 The twenty-nine counts contained in the indictment break down

as follows. Count 1 charged Woods and Hartman with conspiring

to defraud the United States in violation of 18 U.S.C. § 371, by

filing false income tax returns. In Count 2 Woods was charged with

conspiring with Joseph S. Wozniak, an indicted co-conspirator, with

conspiring to defraud the United States in violation of 18 U.S.C.

§$ 371, by filing false income tax returns. Count 3 charged all three

appellants with having conducted the affairs of an enterprise, the

Pittsburgh City Council, through a pattern of racketeering activity

in violation of RICO, 18 U.S.C. § 1962(c). Counts 4 through 10

charged Woods with extorting money, due neither to himself nor

his City Council office, from Ablebuilt, through its president Hart-

man, in violation of the Hobbs Act, 18 U.S.C. § 1951. Counts 11 and

12 charged Woods with extortion from the partnership of Hartman

and Hartman acting through Hartman in violation of the Hobbs Act,

18 U.S.C. § 1951. The indictment charged that Hartman was a

partner in Hartman and Hartman which was in the construction

and property management business. Counts 13 through 15 charged

Woods with extortion from Joseph Wozniak in violation of the

Hobbs Act, 18 U.S.C. § 1951. Counts 16 through 20 charged Woods

with evading payment of his federal income tax for the years 1983,

1984, 1985, 1986 and 1987, in violation of 26 U.S.C. § 7201. Counts

21 and 22 charged Woods with making false statements in his

amended federal individual income tax returns for the calendar

years 1983 and 1984, in violation of 26 U.S.C. § 7206(1). Counts 23

through 26 charged Hartman with making false statements in his

individual income tax returns for the calendar years 1983, 1984,

1985 and 1986, in violation of 26 U.S.C. § 7206(1). Counts 27

through 29 charged Hartman with making false statements in

Ablebuilt’s federal corporate tax returns for the calendar years

1983, 1984 and 1985, in violation of 26 U.S.C. § 7206(1).

3a

certain counts at a jury trial and have appealed from the

judgments of conviction and sentence.” While they have

raised various issues we have concluded that only their

constitutional challenge to their convictions on Count 8,

charging a violation of RICO, 18 U.S.C. § 1962(c), war-

rants discussion.

I. FACTS

Inasmuch as the jury delivered a guilty verdict we

relate the evidence in a light favorable to the govern-

ment. In the early 1980’s, Joseph Wozniak, an unindicted

co-consiprator who testified with a grant of immunity,

was able to have Eco-Seal, a weatherproofing product he

sold, specified for use in projects of the Pittsburgh Hous-

ing Authority. In addition, Wozniak sold another water-

proofing product, Sinak, for use on public projects.’ In

return for these sales, Wozniak bought hundreds of dol-

lars of tickets for political functions from the Director

of the Housing Authority, Daniel Pietragallo, paying for

them in cash.‘ It appears, however, that the ticket situa-

tion was from Wozniak’s view point out of control as he

was “being hit by a lot of tickets, by a lot of sources”

and ‘was having a problem paying on some of these

tickets.”” Consequently, Wozniak at Pietragallo’s sugges-

tion, arranged a meeting with Woods. Woods was known

to Wozniak from “political functions” and “fund raisers”

and Wozniak was aware that he was a member of both

the Pittsburgh City Council and the Board of Directors

of the Housing Authority. When Pietragallo told Woz-

niak to see Woods, Wozniak understood that he was being

told to do business with Woods.

* Woods was found guilty on Counts 1, 2, 3, 7, 9 and 11 through

22. Hartman was convicted on Counts 1, 3, and 29. Ablebuilt was

found guilty on Count 3.

3 We note that in the indictment the product is called “Sinac.”

We are using the spelling “Sinak” as the parties use it in their

briefs.

*Some payments were made at a Pittsburgh restaurant called

“The Common Pleas.”

4a

Woods was apparently an influential member of the

City Council as he was chairman of its Finance Commit-

tee from 1983-1985 and in 1985 was elected its president,

an office he held until 1987 when he was elected its

President-Pro Tem. Woods also served as a member of the

Board of Directors of the Housing Authority at the times

material to this case.

At their first meeting, Wozniak agreed to “kick back”’

to Woods approximately 10% of the gross Wozniak real-

ized from sales of Eco-Seal to contractors for Housing

Authority projects. Wozniak understood that the arrange-

ment was that as long as he made the payments to Woods,

“everything would continue the way it was.” On the other

hand, if he did not pay up Wozniak understood that there

would be “a very good chance that Eco-Seal would no

longer be used” or that a competitior “could come in

there with the same arrangement” and he would lose the

business. Woods and Wozniak also discussed the use of

Eco-Seal in projects of other government agencies and,

according to Wozniak, Woods was to use his influence in

“opening up doors” and would receive 10% of the gross

Wozniak realized from these sales.

In early 1988, in anticipation of a particularly large

sale, Woods and Wozniak reviewed how Woods was to be

paid and agreed that Wozniak would pay him the 10%

directly by check. Not surprisingly, however, they became

uncomfortable with this arrangement because of Woods’

public position. Accordingly, they agreed that Woods

would thereafter be paid through checks made payable to

third parties but that his percentage would be increased

to 25% of gross sales. On January 4, 1983, in further-

ance of this new understanding, Wozniak paid Woods

$1,800 for his influence as a member of the City Council.

Wozniak instructed his accountant to record the check as

the payment of a commission and this transaction is

_

va

racketeering act ten in the RICO count.’ At about the

Same time Wozniak paid Woods a total of $20,220,

through a series of six checks and a political contribu-

tion.” These six checks comprise six of the eight sub-

parts to racketeering act nine.” The $20,220 represented

roughly 25% of the $79,600 in gross sales Wozniak had

made to a company known as Lori Waterproofing for use

on a city project.

While most of the payments to Woods were in con-

sideration for his influence in Housing Authority projects,

some of the projects involved were undertaken by the

Three Rivers Stadium Authority and the Allegheny

County Sanitary Authority (ALCOSAN). Thus, Woods

arranged a meeting between Wozniak and the Executive

Director of the Three Rivers Stadium Authority following

which Wozniak sold Eco-Seal for Three Rivers Stadium,

a sale valued at $10,890. For this sale Wozniak paid

° Racketeering act ten charged Woods with soliciting, accepting,

and agreeing to accept money from Wozniak in consideration for

his assistance, as a member of the City Council, in obtaining con-

tracts for the use of Sinak and Eco-Seal.

® At the trial, Wozniak identified six checks he had written

and delivered to Woods, specifically including check 466, dated Janu-

ary 3, 1983, payable to Woods for $2,000, and checks numbered 547,

575 and 598, each for $1,500, dated respectively, March 23, April 30,

and May 24, 1983, made payable to Pat McFalls Esq. Wozniak

tsetified that while these checks were marked “legal services”, he

had never engaged McFalls for legal services. The other two checks

Wozniak identified were payable to B&C Equipment Co.,—one

numbered 641 and dated July 8, 1983, for $1,000 and the other dated

July 19, 1983, for $12,570. Wozniak testified that he had no knowl-

edge as to the existence or nature of B&C Company. Wozniak also

testified that he had made a $300 oentribution to a campaign of a

friend of Woods, in the expectation that $150 of that contribution

would then be given to Woods.

* Racketeering act nine charged Woods with soliciting, accepting

and agreeing to accept money from Wozniak in return for his

assistance in insuring that Sinak and Eco-Seal wou.d be specified

in Housing Authority projects.

6a

Woods a total of $3,711, through two checks payable to

B&C Equipment Rental, one dated October 19, 1983, for

$1,000, and a second dated December 21, 1983, for $2,711,

payments reflected in racketeering act twelve.*

In December 19838, Woods introduced Wozniak to James

Creehan, the Executive Director of ALCOSAN, which

placed an order for Eco-Seal totaling $3,902.95. At the

time of the purchase Wozniak, Woods, and Creehan dis-

cussed the fact that ALCOSAN rules required advertise-

ment for competitive bidding on contracts in excess of

$4,000. On March 2, 1984, at Woods’ instruction, Woz-

niak wrote a check payable to Burt Labovick, a party

unknown to Wozniak, for $500. This transaction, charged

as racketeering act eleven,’ was a payment to Woods, al-

though at trial Wozniak could not recall the particular

contract involved. On January 25, 1984, Wozniak paid

Woods $1,146 directly by check, a payment Wozniak de-

scribed as the “kick back” to Woods for the ALCOSAN

job." This payment is set forth in the indictment as

racketeering act thirteen."

* Racketeering act twelve charged Woods with soliciting, accepting

and agreeing to accept both of these checks as consideration for his

assistance in having Eco-Seal specified for use in the Three Rivers

Stadium project.

» Racketeering act eleven charged Woods with soliciting, accepting

and agreeing to accept payment from Wozniak in return for his

influence in obtaining contracts for the sale of Eco-Seal and Sinak.

10 While the indictment refers to this check as having been

written on January 25, 1984, the record shows Wozniak that testi-

fied that the same check was written on “7/25, 1984.” Compare

App. at 520 with App. at 41. However, the parties do not address

this discrepancy. We believe that January 25, 1984, is the correct

date.

1! Racketeering act thirteen charged Woods with having solicited,

acccepted and agreed to accept, money from Wozniak as considera-

tion for Woods’ influence in obtaining a contract for the sale of

Eco-Seal to ALCOSAN.

7a

In August 1984, Wozniak sold $24,940.90 worth of

Sinak to Tri-State Waterproofing for use in a Housing

Authority project known as Bedford Dwellings. On Au-

gust 31, 1984, Wozniak wrote a check payable to Rivell

Industrial Contracting, Inc. for $4,400. Wozniak testified

that he never had any dealings with that company and

that he wrote the check at Woods’ instruction to pay him

for the Tri-State contract. This transaction is set forth

in racketeering act nine.

Wozniak also sold Sinak for use in the construction

of the Bloomfield Bridge, Anjo Construction being the

contractor on that job. Originally the contract and plans

for the bridge specified the use of linseed oil to seal the

concrete but Wozniak met with Paul J. McDermott, the

Director of the Pittsburgh Department of Engineering

and Construction (DEC), to discuss specification of Sinak

instead of linseed oil and Woods, at Wozniak’s request,

also spoke with McDermott about the matter.

The DEC is the agency responsible for the design and

construction of Pittsburgh’s capital budget projects, but

it must obtain authorization from the Finance Committee

of City Council before it can award contracts. McDer-

mott knew Woods to have been a member of the Finance

Committee during his time as a council member, and was

also aware that Woods had been the committee’s chair-

man at sometime between 1983-85. Woods contacted Mc-

Dermott several times by telephone to promote the use

of Sinak on the Bloomfield Bridge project and McDermott

testified that he felt that Woods was trying to use his

influence to get him to specify the use of Sinak. Spe

cifically, McDermott testified as follows:

Q. Did you at any time, Mr. McDermott, believe

that Mr. Woods was attempting to influence you to

use Sinak on the Bloomfield Bridge job?

A. Yes.

8a

Q. Did you at any time feel pressured in any way

by Mr. Woods to use Sinak on the Bloomfield Bridge

job?

A. Well, I felt the attempt to influence; and if

that’s calculated as pressure, yes.

Q. What was—in what way did you feel pressured

by Mr. Woods?

A. Only by the number of calls and his sense of

interest in having the Sinak used.

App. at 968.

Eventually McDermott issued a change order to make

Sinak the specified weatherproofing product for the

Bloomfield Bridge project and Wozniak supplied it to

Anjo Construction. On November 4, 1986, Wozniak sent

Anjo Construction an invoice which was later paid for

$43,128.36. On January 9, 1987, at Woods’ instruction

Wozniak wrote a check payable to Faber Rental for

$4,300, even though he knew nothing of that company.

This check was a payment to Woods for approximately

10° of the value of the Sinak sale or the Bloomfield

Bridge. This transaction is set forth in racketeering act

fourteen.’”

During roughly the same time period that he was deal-

ing with Wozniak, Woods entered into a similar relation-

ship with Ablebuilt Construction Co., through its presi-

dent Michael Hartman. Ablebuilt was in the business of

constructing and renovating housing in Pittsburgh, in-

cluding projects for the Pittsburgh Housing Authority

and the Urban Redevelopment Authority.

On March 27, 1984, The Housing Authority entered

into an agreement with Ablebuilt to modernize certain

12 Racketeering act fourteen charged Woods with soliciting, ac-

cepting, and agreeing to accept payment from Wozniak in return

for his assistance in having Sinak specified for use on the Bloom-

field Bridge project.

9a

row houses as part of a Housing Authority project, known

as Northview Heights, for $1,403,000. Louis Billota, a

Pittsburgh landscaper, who like Wozniak had_ been

granted immunity, testified that after he heard that Hart-

man and Ablebuilt had been awarded the Northview con-

tract, he contacted Woods to request that Woods contact

Hartman to put a “good word” in for him concerning

a possible landscaping subcontract and that Woods told

him that ‘‘[h]e’d take care of it.” Billota made a land-

scaping sub-contracting bid on Northview Heights for

$155,000, and was awarded the subcontract three or four

days after his conversation with Woods.

After Bilotta had been awarded the contract, Hartman

attempted to withdraw it, causing Bilotta to ask Woods to

intervene on his behalf. Woods instructed Bilotta to meet

Hartman at a local restaurant, where Hartman produced

the contract which he cut to $82,000. Hartman also

agreed to advance Bilotta $5,000 so that Bilotta could get

back some cars which had been repossessed.

Bilotta began work at Northview in May 1984. The

job lasted for about one year and Bilotta was paid weekly.

In July 1984, Hartman met Bilotta at the Northview

worksite and Bilotta informed him that he was owed

$1,000 for the work he had done that week. Hartman

then wrote a check payable to Bilotta for $2,000, and

asked Bilotta to cash it and give $1,000 to Woods and

tell him that Hartman wanted an early progress payment

from the Housing Authority.

Bilotta cashed the check and delivered $1,000 to Woods,

telling him that Hartman wanted an early progress pay-

ment. Woods took the money and told Bilotta that he

would take care of it. This payment is set forth in rack-

eteering acts one and five."

18 Racketeering act one charged Hartman and Ablebuilt with

offering, conferring, and agreeing to confer a bribe upon Woods.

tacketeering act five charged Woods with soliciting, accepting and

10a

About a month later, Hartman again approached

Bilotta at the Northview worksite with two checks drawn

on Ablebuilt’s account, both dated August 8, 1984, one for

$3,000 and the other for $1,500. Hartman asked Bilotta

to deliver the proceeds of the $1,500 check to Woods and

to ask him for another early progress payment. Bilotta

cashed the two checks, kept $3,000 for his landscaping

services and delivered $1,500 to Woods, telling him that

Hartman wanted another early progress payment. Woods

again told him that “he’d take care of it” and that he

was going ‘‘to call Danny in Florida’, a reference to

Housing Authority Director Dan Pietragallo. Pietragallo

acknowledged at trial that Woods had contacted him

about progress payments on the Northview Heights proj-

ect. This transaction is set forth in racketeering acts one

and five.

In August 1984, Hartman wrote a $3,000 check dated

August 16, 1984, payable to Bilotta, who cashed it, giving

the proceeds to Woods, a transaction set forth in racke-

teering acts one and five. Bilotta testified that during

his work at the Northview project, he delivered six or

seven pay-off checks to Woods, totaling approximately

$8,000 or $9,000. 7

On Hartman’s behalf, Woods also contacted Paul Brophy,

the Executive Director of the Urban Redevelopment Au-

thority of Pittsburgh. The Redevelopment Authority had

its own board of directors but was dependent on the

City Council for almost all of its money and for approval

of property transactions. Specifically, on March 25, 1985,

Woods contacted Brophy about Hartman’s redevelopment

application for a “project review” concerning a proposal

for the construction of subsidized housing. As a result

of this contact, Brophy sent Hartman’s applicaticn to

Harvey Young, Director of the Department of Housing,

for an expedited review. Young responded in a memo

agreeing to accept payment from Hartman and Ablebuilt in return

for his assistance in obtaining accelerated progress payments for

Ablebuilt from the Housing Authority.

|

lla

dated March 27, 1985, in which he indicated that the

Hartman proposal called for a per unit subsidy twice

than that routinely granted.

On May 7, 1985, after having received Young’s memo,

Brophy met with Hartman to negotiate the terms of the

proposal. Brophy was very concerned over the cost of

Hartman’s proposal as government subsidies were in-

volved. In a subsequent telephone conversation between

Woods and Brophy concerning Hartman’s proposal, Woods

told Brophy that he felt that the Redevelopment Authority

was being unreasonable and too hard on Hartman, and

that it should reformulate its position and move the deal

along.

On May 9, 1985, Hartman gave Bilotta a check, pay-

able to Bilotta, for $5,000. Bilotta was to give the pro-

ceeds to Woods with a message to “‘[t]ell him I’m going

to see Paul Brophy at the [Redevelopment Authority]’

and for him to take it easy on him.” This transaction is

set forth in racketeering acts two and six.‘ Bilotta

cashed the check and showed the money to his son, then a

law student, who advised his father to protect himself

by tape recording his conversations with Woods and

Hartman.

That same night Bilotta called Woods and told him “I

got an envelope for you from Mike” and Woods in-

structed Bilotta to bring it to his home. When Bilotta

delivered the money to Woods he told him that:

This is from Mike. It’s for Paul Brophy. He wants

you to talk to Paul Brophy. He’s going to be there

in a couple of days.

App. at 1286.

Woods took the money and said “‘okay”’.

4 Racketeering act two charged that Hartman and Ablebuilt

offered, conferred and agreed to confer a pecuniary benefit upon

Woods in return for his influence with the Urban Redevelopment

Authority. Racketeering act six charged that Woods agreed to and

did accept payment from Ablebuilt and Hartman, in return for his

assistance in obtaining contracts with the Redevelopment Authority.

12a

A week later Hartman called Bilotta and told him

that his meeting with Brophy “went okay but not as good

as it should have.” Bilotta then called Woods and told

him that “he better talk to Brophy because it didn’t go

the way he [Hartman] wanted it to.’”’ Woods said he

would take care of it. Later, after a Hartman-Brophy

meeting, Hartman called Bilotta and told him that

“everything went good, and that was it.”

Brophy testified as follows to the effect Woods’ role

had upon the negotiations over Hartman’s proposal:

Q. Sir, what effect, if any, did Defendant Woods’

calls to you have on you?

A. Well, it—first of all, I always listened to Ben

| Woods] when he called because he was basically

saying move these things faster along, and I re-

spect that. It put me in a difficult position, how-

ever, because we were trying to bargain with Mr.

Hartman on this, and I found myself in a situa-

tion where I had a City Council person in that ne-

gotiation, not in a room in the negotiation, but cer-

tainly making phone calls on it.

And it certainly made it tougher for us to ne-

gotiate with Mr. Hartman because I’m always—at

that point I was always in this juggling situation,

you see, wanting to put as little money as possible

into the deal, but not wanting the deal to go away.

But the person I’m negotiating with has always got

to believe that I’m prepared to let the deal go away,

or there wouldn’t be much of a negotiation going on.

And I think the situation I found myself in was

that it was very hard for any of us to believe that

the deal could go away because Mr. Woods felt so

strongly that it should happen.

App. at 1577.

Harvey Young also testified as to contact that he had

with Woods concerning Hartman’s proposal. Young re-

13a

called that Woods had asked him if he was “taking care

of his man,” a reference Young understood to be to Hart-

man.

Bilotta delivered another $1,000 from Hartman to

Woods in June 1985, with the message that Hartman’s

brother Gary was going to be taking an electrical licens-

ing test for the City of Pittsburgh. When Gary Hart-

man failed the test, Hartman contacted Bilotta and told

him to call Woods and tell him about what had happened.

Bilotta did so, and Woods told him, “[wlell, tell Mike

[Hartman] not to worry about it when he goes back.”

A week later Bilotta heard from Hartman that his

brother had passed the exam, which was apparently only

given to Gary Hartman. The payment of this $1,000 is

set forth in racketeering acts three and seven."

In the fall of 1985, after Hartman held a fund raiser

on behalf of Woods, Hartman and Woods established di-

rect contact. Bilotta testified that thereafter Woods

would no longer return his telephone calls. At this point,

roughly late December 1985, to February 1986, Bilotta

followed his son’s suggestion from the previous May,

and recorded his conversations with Woods and Hart-

man. At a pretrial hearing, Bilotta testified that he had

no intention to use the recordings to blackmail or extort

money from either Woods or Hartman but rather he

made the tapes for his own protection.

On the morning of January 14, 1986, Hartman gave

Bilotta two checks, one for $1,500, and a second for

$2,000. Bilotta testified that he was supposed to cash

these checks and keep $1,500, return $1,000 to Hartman

15 Racketeering act three charges Hartman and Ablebuilt with

offering, conferring and agreeing to confer payment to Woods in

return for his assistance in having Hartman’s brother, identified

in the indictment only as “a person known to the grand jury,”

certified as an electrician for purposes of public projects. Rack-

eleering act seven charges that Woods solicited, agreed to accept

the $1,000 payment for such assistance.

l4a

and give $1,000 to Woods. On that same day Bilotta

recorded several conversations he had with Woods and

Hartman.

After he received these checks and cashed them, Bilotta

returned $1,000 to Hartman. Bilotta then spoke to Woods

by telephone a caJl which Bilotta recorded, and com-

plained that he was paid only $1,500 while he was sup-

posed to receive $2,000 as an advance on work he was

to do for Hartman and Ablebuilt. After his conversa-

tion with Woods, Bilotta called Hartman and told him

that Woods wanted another $1,500 and that he could

contact Woods directly to confirm it. About five minutes

later Hartman called Bilotta and asked him to come to

his house to pick up another check for-$1,500, which

Bilotta did. Before cashing this check, he gave $2,000

to Woods from the proceeds of the first two checks, and

then kept the $1,500 check and $500 for the original two

checks for a total of $2,000. This incident is set forth

in racketeering acts four and eight."®

On February 6, 1986, Hartman gave Bilotta a check

for $3,000 to cash with instructions to give $2,000 to

Woods. On February 16, 1986, Bilotta received another

check for $2,000 from Hartman and gave the whole

$2,000 to Woods. These transactions are set forth in

racketeering acts two and six.

On March 20, 1986, Hartman gave Bilotta two checks

which he signed for Ablebuilt, one for $4,000 and a

second for $2,000, both payable to Bilotta. Of the pro-

ceeds of the $4,000 check, $2,500 was to be returned to

Hartman, and Bilotta was to retain the remaining $1,500

16 Racketeering act four charged Hartman and Ablebuilt with

offering, conferring and agreeing to confer payment upon Woods

for his assistance in obtaining contracts with the Housing Authority

of the City of Pittsburgh. Racketeering act eight charged Woods

with soliciting, agreeing to accept and accepting payment from

Hartman and Ablebuilt in return for his assistance in obtaining

contracts with the Housing Authority.

15a

as payment for landscaping work. The proceeds of the

$2,000 check were to be given to Woods. Bilotta chashed

the checks and, in accordance with Woods’ direction, gave

$2,000 to Woods’ son. The March 20, 1986, check for

$2,000 is set forth in racketeering acts four and eight.

On June 22, 1989, the grand jury returned the indict-

ment against Woods, Hartman, and Ablebuilt, all of

whom pleaded not guilty. Woods and Hartman filed a

joint motion to dismiss Count 8, alleging that RICO is

unconstitutionally vague and Woods and Hartman also

moved to suppress the tape recordings Bilotta had made

of his telephone conversations with them. These motions

were denied but the district court did dismiss Counts 24

and 25.

At the conclusion of the government’s case, Hartman

moved for a judgment of acquittal as to Counts 23, 26

and 27. The Government agreed to a dismissal of Counts

23 and 27, and the court granted Hartman’s motion as

to Count 26. Appellants then moved unsuccessfully for

acquittal on Count 3, charging the RICO violation. Af-

ter the close of the trial, but before the jury was charged,

the court dismissed Counts 4, 5, 6, 10 (Hobbs Act viola-

tions as to Woods) and 28 (charging Hartman with

making a false statement on Ablebuilt’s federal corpo-

rate income tax return for 1984).

Woods was eventually found guilty on Counts 1, 2, 3,

7, 9, and 11 through 22 but he was found not guilty on

Count 8. He was sentenced to eight years’ imprisonment

on Counts 3, 7, 9, and 11 through 15, and five years im-

prisonment on Counts 16 through 19. On the remain-

ing Counts he received sentences of imprisonment of 24

months followed by three year terms of supervised re-

lease on Counts 1, 2 and 20 and a one year term of

supervised release on Counts 21 and 22. Woods was to

serve all of his custodial sertences concurrently. Hart-

man was convicted on Counts 1, 3 and 29. On Count 1

he was sentenced to 13 months of imprisonment followed

16a

by three years of supervised release and a $30,000 fine.

On Count 3, he was fined $10,000 and was sentenced to

one year of imprisonment to be served consecutively to

that on Count 1. On Count 29 he was sentenced to one

years of imprisonment to be served concurrently with the

sentence on Count 3. Ablebuilt was convicted on Count

3 and was fined $20,000.

This consolidated appeal followed.

II. CONSTITUTIONALITY OF RICO

Appellants contest their conviction on Count 3, assert-

ing that 18 U.s.C. § 1962(c) is unconstitutionally vague

so that they were denied due process of law.'’ Specifi-

cally, they urge that the statutory provision prohibiting

the conducting of an enterprise’s affairs through a “pat-

tern of racketeering activity” is so imprecise that per-

sons of reasonable intelligence are left to guess what con-

stitutes a “pattern of racketeering acivity’, thus creat-

ing the possibility of arbitrary and discriminatory en-

forcement.’*

A statute violates due process of law if it “either

forbids or requires the doing of an act in terms so vague

that men of ordinary intelligence must necessarily guess

as to its meaning and differ as to its application.” Con-

'7 Section 1962(c) reads as follows:

It shall be unlawful for any person employed by or associ-

ated with any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct or partici-

pate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity or collection

of unlawful debt.

We are exercising plenary review over this constitutional issue.

18 Appellants do not argue that the statutory phrase “eonduct

of such enterprise through’ is unconstitutionally vague. Rather,

in appellants’ brief it is argued that there was insufficient evidence

to establish a nexus between themselves, the predicate racketeering

acts and the enterprise to satisfy the requirement that they had con-

ducted the enterprise through a pattern of racketeering activity.

17a

nally v. General Construction Co., 269 U.S. 385, 391, 46

S.Ct. 126, 127 (1926). See United States v. Pungitore

et al., 910 F.2d 1084, slip. op. at 25 (8d Cir. 1990).

However, vagueness challenges not implicating the First

Amendment, “must be examined in the light of the facts

of the case at hand.” United States v. Powell, 423 U.S.

87, 92, 96 S.Ct. 316, 319 (1975). Therefore, outside of

the First Amendment context, a party has standing to

raise a vagueness challenge only if the challenged statute

is vague as to that party’s conduct. New York v. Ferber,

458 U.S. 747, 767-69, 102 S.Ct. 3348, 3360-61 (1982);

Pungitore, slip op. at 25.

Appellants contend that their challenge is a facial at-

tack on the constitutionality of RICO and not a challenge

as to its application in this particular case. Accordingly,

they argue that we should focus solely upon the vague-

ness of the statutory language itself rather than their

conduct. Nevertheless, inasmuch as they have not demon-

strated that as applied to them RICO implicates values

protected by the First Amendment, they are confined to a

challenge that the statute is unconstitutional in its appli-

cation to their specific conduct. See Pungitore, slip op. at

24-25,

This is not the first time that this court has been faced

with a constitutional challenge to RICO. In Pungitore

we rejected an identical constitutional challenge, albeit in

an organized crime context. Pingitore, slip op. at 21-22.

Here, as did the appellants in Pungitore, appellants rely

heavily upon Justice Sealia’s concurrence in H.J. Inc. v.

Northwestern Bell Telephone, US. , 109 S.Ct.

2893 (1989).

In H.J. Inc., while not faced with a void for vagueness

challenge, the Supreme Court was called upon to consider

what course of conduct would satisfy RICO’s pattern of

racketeering activity requirement. /d. at 2897. The Court

adopted an analytical approach composed of two constit-

uent elements. The first element is one of relatedness

18a

between the predicate racketeering acts which serve as

the basis for a RICO prosecution. This relationship is

established where the predicate acts charged

have the same or similar purposes, results, partici-

pants, victims, or methods of commission, or other-

wise are interrelated by distinguishing chracteristics

and are not isolated events.

Id. at 2901 (citation omitted).

The second constituent element, which requires a show-

ing that “the predicates themselves amount to, or that

they otherwise constitute a threat of, continuing racket-

eering activity” was the more troubling to the Court. /d.

The Court indicated that continuity is centrally a tem-

poral concept which can be established through a series

of related predicate acts committed over a substantial

period of time or by the commission of related predicate

acts over a shorter period of time, where the acts by

their nature demonstrate a threat of continuity. /d. at

2902.

In his concurrence, Justice Scalia took the majority to

task for what he considered its “murky discussion” which

“has added nothing to improve our prior guidance, which

has created a kaleidoscope of circuit positions.” Jd. at

2908. He concluded by noting that:

No constitutional chailenge to this law has been

raised in the present case, and so that issue is not

before us. That the highest Court in the land has

been unable to derive from this statute anything more

than today’s meager guidance bodes ill for the day

when that challenge is presented.

Id. at 2909.

This case, as did Pungitore, presents the constitutional

challenge Justice Scalia anticipated.

As in Pungitore, we are constrained to consider the

vagueness challenges in light of the evidence of the con-

19a

duct. involved. Pungitore, slip. op. at 25. Accordingly,

our inquiry focuses upon the question of whether a per-

son of reasonable intelligence would know that the conduct

we have described constitutes a pattern of racketeering

activity. Clearly, the appellants should have recognized

that it was.

Woods’ conduct readily satisfies the relatedness plus

continuity test of H.J. Inc. It was shown that over a

four year period he repeatedly solicited and accepted

bribes in connection with public matters. By any stand-

ard his activities were sufficiently related to satisfy RICO,

given the consistency of his activities in methods, pur-

poses, results and participants. Thus, he accepted bribes

from Albebuilt, through Hartman, in return for his in-

fluence as a City Council member in matters concerning

housing construction and renovation contracts with the

Housing Authority of the City of Pittsburgh and with

the Redevelopment Authority. He solicited and accepted

bribes from Ablebuilt, through Hartman, to secure early

progress payments on work done for the Housing Author-

ity and he solicited and accepted a bribe from Ablebuilt

and Hartman for his influence in licensing Hartman’s

brother as an electrician for purposes of work on city

contracts. Furthermore, he interceded on Hartman’s be-

half in his negotiations with the Redevelopment Author-

ity. In addition, Woods solicited and accepted bribes from

Wozniak for his influence in securing sales of Wozniak’s

products for use in public projects of the City of Pitts-

burgh, the Housing Authority and other public agencies.

Woods’ conduct also easily satisfies the continuity re-

quirement of H.J. Inc. The four years over which these

related racketeering acts were committed constitutes a

substantial period of time. Accordingly, under H.J. Inc.’s

relatedness and continuity test, a pattern of racketeering

activity obviously existed, thus bringing Woods’ course of

conduct squarely within the purview of RICO,

20a

Ablebuilt and Hartman were also charged with conduct

easily meeting the H.J. Inc. relatedness plus continuity

test. Ablebuilt and Hartman were charged with multiple

racketeering acts of bribery and, in fact, they bribed

Woods on many occasions over an extended period. As

with Woods, the racketeering acts are sufficiently related

to satisfy RICO given the similarity of the methods,

goals, results, and identity of the parties. They bribed

Woods in return for his influence in matters concerning

construction contracts with the Housing Authority of

Pittsburgh and for his assistance in matters concerning

construction contracts with the Urban Redevelopment

Authority. Furthermore, they bribed Woods in the matter

of licensing Hartman’s brother for electrical work on city

projects.

The continuity of these related acts is also established

were committed. Accordingly, because the racketeering

activity of Ablebuilt and Hartman, being both related

and continuous, constitutes a pattern of racketeering_ac-

tivity which RICO clearly prohibits, RICO was not uncon-

stitutionally vague as to them.’

In Pungitore, we indicated that:

Unlike in H.J., Inc., which involved allegations of

corruption within the ranks of a legitimate business,

the application of RICO to the activities of the Searfo

crime family could not have come as a surprise to the

members of the family. In fact, we have doubts that

a successful vagueness challenge to RICO ever could

be raised by defendants in an organized crime case.

Certainly appellants’ attempt to do so has been singu-

larly unpersuasive.

Pungitore, slip op. at 27.

19 Appellants also urge that 18 Pa. Cons. Stat. Ann. § 4701

(Purdon 1983), the Pennsylvania bribery statute the violation

of which was referred to in racketeering activity charged in Count

3 is unconstitutionally vague. We reject this contention.

2la

We think that much the same thing can be said in this

political corruption case. The application of RICO to the

activities of these defendants should not have come as a

surprise to them. Whatever might be true in other cases,

18 U.S.C. $ 1962(¢) is not unconstitutional when applied

in this ongoing, hardcore political corruption case.

Ill. THE REMAINING ISSUES

Appellants have raised the following additional issues:

1. The tape recordings made by Bilotta should have

been suppressed ;

2. At Count 3, the evidence was insufficient to prove

the required nexus between appellants, the enterprise

and the racketeering activity;

3. At Count 3, the court impermissibly broadened —

the bases for conviction by instructing the jury that

any exercise of discretion by Woods’ as a public serv-

ant was sufficient to support conviction of the predi-

cate offenses;

4. Under the Hobbs Act, the evidence was insuffi-

cient to prove that Woods exploited the inherently

coercive power of his office to obtain money from

Wozniak or Hartman;

5. The trial court improperly restricted cross-exam-

ination of Bilotta, a principal government witness;

6. In applying the sentencing guidelines to Woods’

conviction of tax violations, the court erred in apply-

ing a four-level increase for his role in the offense;

7. In applying the sentencing guidelines to Hart-

man’s conviction for conspiracy at Count one, the

court erred in applying a two-level increase for his

role in the offense;

8. The government abused statutory construction

doctrine in its effort to rewrite section 2515 of the

Wiretap Act.

22a

We have carefully examined these contentions under the

appropriate standards of review and have concluded they

are clearly without merit.

IV. CONCLUSION

Having concluded that appellants’ convictions under

RICO were not a deprivation of due process of law, and

that their other objections are not meritorious, we will

affirm the judgments of conviction and sentence on all

counts.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

ied

23a

OPINION OF THE DISTRICT COURT

(Transcription of proceedings, October 2, 1989)

“As part of your motion to dismiss, you allege in your

Roman Numeral Two that it should be dismissed because

the indictment is vague ... Your motion is denied. They

are not unconstitutionally vague.”

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Criminal No. 89-61

UNITED STATES OF AMERICA

Ve

BENJAMIN H. Woops, et al.,

Defendants

MOTION TO DISMISS

* * * *

Il. DUE PROCESS: STATUTORY VAGUENESS

16. The Racketeering Influence and Corrupt Organiza-

tions Act, 18 U.S.C. § 1962(¢) (Count Three) is uncon-

stitutionally vague on its face, e.g., in failing to define

with sufficient precision the phrase, “pattern of racketeer-

ing activity”.

47. Further, 18 Pa.C.S. § 4701, the state statute relied

on by the government to establish the predicate acts of

racketeering, provides no standards useful in ascertaining

what is meant by the term, “other exercise of discretion

as a public servant” and is, therefore, unconstitutionally

vague on its face and overly broad as applied to De-

fendant.

48. Count Three of the indictment should therefore be

dismissed with prejudice.

* * * *

25a

STATUTES INVOLVED

18 U.S.C. § 1962(c)

(c) It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce,

to conduct or participate, directly or indirectly in the

conduct of such enterprise’s affairs through a pattern

of racketeering activity or collection of unlawful debt.

18 Pa.C.S. § 4701 (a)

(a) Offenses defined.—A person is guilty of bribery, a

felony of the third degree, if he offers, confers or agrees

to confer upon another, or solicits, accepts or agrees to

accept from another:

(1) any pecuniary benefit as consideration for the

decision, opinion, recommendation, vote or other ex-

ercise of discretion as a public servant, party official

or voter by the recipient.

(2) any benefit as consideration for the decision,

vote, recommendation or other exercise of official dis-

cretion by the recipient in a judicial, administrative

or legislative proceeding; or

(3) any benefit as consideration for a violation of

a known legal duty as public servant or party of-

ficial.

Te

26a

ARTICLE 3, HOME RULE CHARTER,

CITY OF PITTSBURGH

ARTICLE 3

LEGISLATIVE BRANCH

301. THE COUNCIL

The legislative power of the City shall be vested in a

council.

* * * *

308. PROHIBITIONS

Members of council shall not:

a. hold any office, position or employment in any

corporation holding or applying for franchises

from the City;

b. have a personal or private interest in any legis-

lation proposed or pending before council, unless

they:

1. disclose the fact to council; and

2. refrain from voting or participating in the

discussion of the matter;

ce. hold any other office, position or employment in

the government of the United States, the Com-

monwealth of Pennsylvania, the City of Pitts-

burgh or Allegheny County; except,

1. officer or member in the federal reserve;

2. officer or member in the National Guard of

Pennsylvania;

3. member of an authority as limited by section

220.

Members of council who violate any of the above pro-

visions shall immediately forfeit their office.

* * * *

27a

310. POWERS OF COUNCIL

Council shall have the following... powers:

a.

to employ or retain its own staff and consultants

including a city clerk and an attorney qualified

to practice law before the Supreme Court of

Pennsylvania, who may act as legal advisor to

council, and may represent council as a body in

legal proceedings. Council’s attorney shall not

represent the City as a municipal corporation in

any legal proceeding;

to conduct investigations in accordance with the

provisions of this charter;

to approve appointments as provided by this char-

ter, except as otherwise mandated by law;

to exercise the power of removal as provided by

this charter;

to override the veto of the mayor by a two-thirds

vote of all the members;

to call a meeting at any time between council

and the mayor jointly to discuss legislation or

the business of the City in general, and to compel

the attendance of the mayor at a council hearing;

to authorize the sale of city services outside the

City so long as services to the City are not im-

paired;

to fix, by resolution, the salary of all elected city

officials, but no elected city official shall receive

a salary increase that exceeds the average per-

centage of increase in salaries and wages paid

to all city employees as based on the previous

year’s salary. Further, the salary paid to elected

city officeholders shall not be diminished during

their term in office;

28a

i. to exercise others powers conferred by this char-

ter, by law or ordinance, consistent with the pro-

visions of this charter.

311. REMOVAL POWER

Council shall have the power to remove from office for

cause any person appointed to office with the required

approval of council. Commission of any corrupt act or

practice, malfeasance, or the willful commission of any

fraud upon the City shall constitute cause for removal.

Council shall give any person charged due notice and an

opportunity to be heard. Removal shall be effective upon

passage of a resolution which receives the affirmative

vote of a majority of al! council members.

312. INVESTIGATIONS

Council shall have power, by resolution, to authorize

investigations to be conducted by council or by a com-

mittee of council. Investigations may deal with legisla-

tive or administrative matters. The subject of the in-

vestigation shall be stated in the resolution authorizing

the investigation. Council may reopen the budget to pro-

vide funds for the investigation. The presiding officer

of council or the committee shall have the power to ad-

minister oaths to witnesses.

313. PUBLIC MEETINGS

Council and its committees shall exercise its powers

only at meetings which shall be open for public attend-

ance.

314. ROLL CALL VOTES

All final action in adopting legislation shall be by roll

call vote, and the vote of each member of council shall

be entered in the minutes of the meeting.

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29a

315. CONDUCT OF BUSINESS

Council shall conduct and hold meetings at which legis-

lation may be introduced and passed at least fifty weeks

during the calendar year.

316. LEGISLATION

Council may legislate by ordinance or resolution. Or-

dinances shall deal with general rules of continuing ef-

fect. Resolutions shall deal with specific matters such as

authorization of contracts, salaries, appropriations and

budget transfers. All ordinances and resolutions intro-

duced shall be kept in a place accessible to the public

at all reasonable times.