# Petition for Writ of Certiorari — Hartman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 947

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3355%3A1. Public record. Not legal advice.