U.S. v. Rone, s. 77-3964

Citation598 F.2d 564
Decision Date13 June 1979
Docket Number77-3695,Nos. 77-3964,s. 77-3964
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Justin RONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy Dupont LITTLE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Terry Amdur, Pasadena, Joe Reichman, Los Angeles, Cal., for defendant-appellant.

Ronald W. Rose, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and WALLACE, Circuit Judges, and FOLEY, * District Judge.

ROGER D. FOLEY, District Judge:

On July 26, 1977, the Grand Jury returned a six-count indictment charging appellants Rone and Little with:

COUNT I: Conspiracy to violate the Racketeer Influenced and Corrupt Organizations statute (RICO) (18 U.S.C. § 1962(d)).

COUNT II: A substantive RICO offense, including as the acts of racketeering three murders and two extortions (the same extortions alleged in Counts III and IV (18 U.S.C. § 1962(c)).

COUNT III: The extortion of Donald Brennan (18 U.S.C. § 894).

COUNT IV: The extortion of Kenneth Brader (18 U.S.C. § 894).

Rone alone was named in the last two counts of the indictment.

COUNT V: Possession of an unregistered firearm (18 U.S.C. § 5861(d)).

COUNT VI: Possession of a firearm which was not identified by a serial number (the same sawed-off shotgun involved in Count V) (18 U.S.C. § 5861(i)).

Following an eleven-day trial before Judge Takasugi, the jury returned its verdict, finding each defendant guilty of all charges against him. In addition, a special verdict form was returned as to Count II of the indictment, finding that the defendants has committed all three murders and the two extortions. The district court sentenced the defendants to the maximum terms. Rone received consecutive sentences

of twenty years each on Counts I through IV, and ten years on each of the two firearms violations, for a total of 100 years. Little received four consecutive sentences of twenty years each on Counts I through IV, for a total of 80 years.

FACTUAL BACKGROUND

Rone and Little consorted together in a wide range of unlawful activity which included murder and extortion. A large part of the Government's case was established by the testimony of Donald Brennan, a Los Angeles area bookmaker who had extensive contacts with the defendants. Brennan introduced Rone to James Rosie in the spring of 1973. Rosie, Rone and Little apparently entered into a mutual association which ended in May or June of 1974 when Rone and Rosie had a disagreement over payoffs from a fraudulent insurance policy scheme. Rosie was last seen alive on July 31, 1974, in the company of an associate, Timothy Mallen.

Brennan and his wife testified that both Rone and Little bragged to them that they had used a sawed-off shotgun to blow off Rosie's head. The two men also told of administering an intentional lethal overdose of morphine to Mallen. Mallen's body was recovered and an autopsy revealed death was caused by an overdose of either morphine or heroin. Rosie's body was never found.

With Rosie out of the way, Rone began demanding that Brennan pay him any debts Brennan owed to Rosie. Rone also began intercepting Rosie's monthly Social Security check which was mailed to Brennan's California residence. These checks, issued in Alabama, were cashed by Rone and Little in California. Brennan made payments to Rone on the amounts he had owed to Rosie and continued borrowing money from Rone to cover expenses incurred by his bookmaking operation.

Having lent large amounts of money to Brennan, Rone apparently took great interest in the success of Brennan's operations, even to the point of collecting money owed to Brennan's book. One of those who owed Brennan for gambling losses was Kenneth Brader. Brader and his wife testified that Little, using the name of Jim Vito, came to their house to collect money, threatening on several occasions to break Brader's legs and throw him from a fourth floor balcony. Brader also testified that Little told him that Rone was his boss. Furthermore, on at least one occasion, Rone forced Brennan's stepdaughter to negotiate a check from Brader rather than have his name appear on the check as an endorser.

In another episode of bragging to Brennan, both Rone and Little admitted the kidnapping and contract execution of Kenneth Whetstone, who was in the steel business. The defendants stated that their payment for the murder was borrowed by Whetstone's competitor from the victim. Whetstone's body was found with a .38 caliber bullet wound. A .38 caliber pistol was found at Little's residence following his arrest.

The Rone-Little activities carried on into early 1977 with mounting pressure applied to Brennan to pay loans owed to Rone. After receiving threats on his life from both Rone and Little, Brennan went to the FBI. Equipped with recording devices provided by the FBI, Brennan was able to record several conversations with Rone which were admitted at trial. These tapes implicated Rone in the extortion of Brennan and also contained a reference to the murder of Rosie.

ISSUES ON APPEAL

I. Whether the evidence established an enterprise as defined in 18 U.S.C. § 1961(4).

II. Whether Wharton's Rule prohibits conviction and consecutive sentences for the RICO substantive charge (Count II) and the RICO conspiracy charge (Count I).

III. Whether the district court erred in imposing consecutive sentences for the RICO substantive violation (Count II) and the two extortions (Counts III and IV).

IV. Whether the district court erred in imposing consecutive sentences for Rone's two firearm convictions (Counts V and VI).

V. Whether there was sufficient evidence to convict Rone for the extortion of Brader (Count IV).

VI. Whether the Court properly instructed the jury on the required interstate commerce effect of the enterprise.

I. "ENTERPRISE" UNDER RICO

Title IX of the Organized Crime Control Act of 1970 concerns " Racketeer Influenced and Corrupt Organizations" (RICO). Section 1961 defines the terms used in the proscriptive portions of the statute. An "enterprise" includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). "Racketeering activity" means any act constituting a violation of a variety of enumerated state or federal offenses. 18 U.S.C. § 1961(1). A "pattern of racketeering activity" is defined as at least two acts of such racketeering activity. 18 U.S.C. § 1961(5). Title IX seeks to bar the investment of racketeering moneys, the acquisition of property through a pattern of racketeering activity or unlawful debt collection, the conduct of an enterprise through a pattern of racketeering or unlawful debt collection, and any conspiracy to commit the above acts. 18 U.S.C. § 1962(a)-(d).

Defendants argue that their convictions under § 1962 cannot stand as the "enterprise" must be a legitimate business to bring it under the umbrella of the RICO statute. This contention is without merit. A reading of § 1962(c) and Title IX in its entirety indicates that Any enterprise which is conducted through a pattern of racketeering activity falls within the statute.

In fashioning the statute, Congress promulgated a broad legislative scheme to encompass a variety of criminal activities, regardless of their direct effect on legitimate business. The words "legitimate" or "illegitimate" appear nowhere in Title IX, and nowhere does Congress evince an intent to make such a distinction. Section 1962(c) does not restrict "enterprise" to a legitimate one only because it uses the words "Any enterprise." Further, § 1961(4) provides an all-encompassing definition of enterprise, including "any union or group of individuals associated in fact although not a legal entity." Broad and unrestricted use of the term "enterprise" appears throughout Title IX. Given the presence of the wholly unencumbered term "any enterprise" throughout the statute, we hold that its use in § 1962(c) manifests an intent to proscribe the conduct of specified activities through a pattern of racketeering activity, regardless of the type of enterprise involved. See United States v. Elliott, 571 F.2d 880 (5th Cir. 1978); United States v. Altese, 542 F.2d 104 (2d Cir. 1976); United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974).

The view that § 1962(c) reaches illicit enterprises is shared by the Second, Fifth and Seventh Circuits. In Elliott, supra, the Court noted that:

" 'Congress gave the term "enterprise" a very broad meaning'. On its face and in light of its legislative history, the Act clearly encompasses 'not only legitimate businesses but also enterprises which are from their inception organized for illicit purposes'. United States v. McLaurin, 557 F.2d 1064, 1073 (5th Cir. 1977). Similarly, we are persuaded that 'enterprise' includes an informal, de facto association such as that involved in this case. In defining 'enterprise', Congress made clear that the statute extended beyond conventional business organizations to reach 'Any . . . group of individuals' whose association, however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes. The statute demands only that there be association 'in fact' when it cannot be implied in law."

571 F.2d at 897-98.

It is notable that Congress could have restricted the meaning of the Act by inserting a single word, but did not do so. United States v. Altese, 542 F.2d 104, 106 (2d Cir. 1976).

When no ambiguity is apparent on the face of a statute, an examination of legislative history is inappropriate. The proper function of legislative history is to solve, and not create, an ambiguity. United States v. Blasius, 397 F.2d 203, 205-06 (2d Cir. 1968). Notwithstanding the facial clarity of § 1962(c), an examination of the legislative history...

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