Alvers v. State

• Decision Date: 18 February 1986
• Docket Number: No. 1-585A116,1-585A116
• Parties: RICO Bus.Disp.Guide 6191 Ronnie ALVERS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 83

489 N.E.2d 83

RICO Bus.Disp.Guide 6191

Ronnie ALVERS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-585A116.

Court of Appeals of Indiana,

First District.

Feb. 18, 1986.

Glenn A. Grampp, Lopp, Lopp & Grampp, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Ronnie Alvers appeals his conviction for Corrupt Business Influence, a class C felony, in violation of Indiana Code sections 35-45-6-2 ¹ and 35-43-4-2. ² We affirm.

FACTS

In 1984, Ronnie Alvers (Alvers) was indicted for Corrupt Business Influence, a class C felony, in violation of Indiana Code section 35-45-6-2. Alvers had worked in the jewelry business since November of 1970. From October of 1977, through October of 1978, Alvers was self-employed in the jewelry business and worked out of his home. On October 16, 1978, Alvers incorporated his business under the name of Alvers Jewelers, Inc. and conducted business from a commercial location in Evansville, Indiana. He continued at this location until August of 1984, when he ceased doing business due to adverse publicity generated by the investigation leading to his indictment. Alvers was charged with seven specific acts of two basic types--receiving stolen property and substituting cubic zirconias for diamonds in jewelry that was submitted for repairs, thereby evidencing a pattern of racketeering activity. On October 19, 1984, the jury returned a guilty verdict. Thereafter, Alvers perfected this appeal. Additional facts necessary to the discussion will be developed below.

ISSUES

While Alvers presents ten issues for review, we find that these are subsumed into four basic issues.

1. Whether the trial court erred in denying Alvers' first Motion to Quash.

2. Whether the trial court erred in permitting the jury to determine whether Alvers Jewelers, a corporation, was an enterprise as defined in Indiana Code section 35-45-6-1.

3. Whether the trial court erred in permitting Delores Sailer and Katherine Sprague to testify as to prior acts allegedly committed by Alvers.

4. Whether the trial court erred in giving final instruction No. 15 and refusing to give Alvers' tendered instruction No. 5.

DISCUSSION AND DECISION

Issue One

Alvers argues that the trial court erred in denying his first Motion to Quash because Indiana's anti-racketeering statute, Indiana Code sections 35-45-6-1 and 35-45-6-2, is preempted by the federal statute prohibiting racketeer influenced and corrupt organizations (RICO). 18 U.S.C.A. sections 1961-1968 (West 1984). Preemption is a judicially created doctrine based on the Supremacy Clause of the Constitution. Preemption is employed to reconcile the exercise of authority by the federal and state governments within a single framework. Consequently, a state law must yield if Congress preempts a particular field. Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc. (5th Cir.1984), 737 F.2d 456, 459, cert. denied --- U.S. ----, 105 S.Ct. 951, 83 L.Ed.2d 959; Norfolk & W. Ry. v. Brotherhood of Locomotive Engineers (W.D.Va.1978), 459 F.Supp. 136, 144. Congress may preempt an area by expressing its intent to supplant state law or it may regulate the subject so pervasively that it completely occupies the area. Boehringer, at 459. The federal RICO statute does not expressly preempt state law. Therefore, we must examine the pervasiveness of the regulation.

In determining the existence of non-express preemption we must consider whether: (1) the area requires national uniformity, (2) there is evidence of congressional design to preempt the field, or (3) the state statute actually and directly conflicts with the federal provision. Boehringer, at 459. Indiana's statute does not conflict with the federal provision nor is there any evidence that Congress intended to preempt the field. The federal statute, aimed at preventing the influx of organized crime into enterprises, is geared towards interstate and international business, whereas Indiana's statute deals with intrastate concerns. The two statutes complement each other. There is no basis for Alvers' assertion that Indiana's anti-racketeering statute is preempted by RICO.

Alvers also argues it was error to deny his Motion to Quash because the indictment was insufficiently precise and he was therefore not properly advised of the charges against him. The form of an indictment must substantially comply with the form delineated in the statute. ³ The information or indictment substantially complies with the statute if the wording specifically informs the accused of the charge against him. Merry v. State (1975), 166 Ind.App. 199, 209, 335 N.E.2d 249, 256, trans. denied. Defects or imperfections in a charging instrument are grounds for reversal only where they prejudice the substantial rights of the defendant. Thorne v. State (1973), 260 Ind. 70, 71, 292 N.E.2d 607, 608. In the present case, the indictment specifically states the acts committed and the nature and elements of those acts. ⁴ In addition, the indictment includes the approximate dates and location acts were committed. Finally, the indictment conforms to all the procedural requirements of the statute. The indictment clearly notifies Alvers of the crimes for which he was charged and, therefore, does not prejudice him in any way. Consequently, Alvers' argument that the indictment failed to notify him of the charges against him is meritless and the trial court properly denied his motion to quash.

Issue Two

The majority of Alvers' appeal rests on the question whether a corporation is included in the definition of an "enterprise" as it was defined in Indiana's anti-racketeering statute at the time the acts were committed. Under the statute in effect at that time, "enterprise" was defined as a: "(1) sole proprietorship, partnership, business trust, or governmental entity; or (2) union, association, or group, whether a legal entity or merely associated in fact." Ind.Code sec. 35-45-6-1 (1982). On March 15, 1984, the Indiana legislature, by emergency amendment, added the word "corporation" to this definition. The statute now defines an "enterprise" as a: "(1) Sole proprietorship, corporation, partnership, business trust, or governmental entity; or (2) Union association, or group, whether a legal entity or merely associated in fact...." Ind.Code sec. 35-45-6-1 (Burns 1985). The acts comprising Alvers' offense occurred while his business was incorporated and prior to the amendment of the statute. Hence, Alvers argues that, as a corporation, he did not fall within the definition of an "enterprise" as required by the anti-racketeering statute and was, therefore, charged with a crime that did not exist.

The Indiana anti-racketeering statute is essentially patterned after the federal RICO laws. See 18 U.S.C.A. sections 1961-1968 (West 1984). The federal RICO statute states that 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[.]" The word "corporation" was included in this definition at the time of its enactment in 1970. The federal courts have determined that Congress gave the term "enterprise" a broad meaning. United States v. Rone (9th Cir.1979), 598 F.2d 564, cert. denied 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780; United States v. Hawes (5th Cir.1976), 529 F.2d 472. See United States v. Kovic (7th Cir.1982), 684 F.2d 512, cert. denied 459 U.S. 972, 103 S.Ct. 304, 74 L.Ed.2d 284 (city police department is enterprise); United States v. Angelilli (2d Cir.1981), 660 F.2d 23, cert. denied 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (enterprise includes governmental units); United States v. Lee Stoller Enterprises, Inc. (7th Cir.1981), 652 F.2d 1313, cert. denied 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 615 (county sheriff's department is enterprise); United States v. Sutton (6th Cir.1980), 642 F.2d 1001, cert. denied 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (use of jewelry store for fencing operation constituted enterprise); United States v. Scotto (2d Cir.1980), 641 F.2d 47, cert. denied 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (enterprise includes any union); Eisenberg v. Gagnon (E.D.Pa.1983), 564 F.Supp. 1347 (limited partnerships are enterprises); United States v. Hawkins (M.D.Ga.1981), 516 F.Supp. 1204 (individual may be enterprise); State v. Buzz Berg Wrecking Co., Inc. (D.Md.1980), 496 F.Supp. 245 (enterprise includes governmental organizations). As such, "enterprise" includes both legitimate and illegitimate businesses as well as informal, de fato associations. United States v. Computer Sciences Corp. (4th Cir.1982), 689 F.2d 1181, cert. denied 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953; United States v. Burns (7th Cir.1982), 683 F.2d 1056, cert. denied 459 U.S. 1173, 103 S.Ct. 821, 74 L.Ed.2d 1018; United States v. Provenzano (3d Cir.1980), 620 F.2d 985, cert. denied 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129; United States v. Elliott (5th Cir.1978), 571 F.2d 880, cert. denied 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344; United States v. Cappetto (7th Cir.1974), 502 F.2d 1351, cert. denied 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395. This liberal interpretation of RICO extends to defining a corporation. United States v. Computer Sciences Corp. (4th Cir.1982), 689 F.2d 1181, cert. denied 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (organization having no separate corporate existence, but having substantial number of corporate employees working within division known by organization's name, constitute "group of individuals associated in fact although not a legal entity" and thus was "enterprise"); United States v. Hartley (11th Cir.1982), 678 F.2d 961, cert. denied 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (corporation can...