Doe, Matter of

• Decision Date: 31 January 1996
• Citation: 294 N.J.Super. 108,682 A.2d 753
• Parties: In Matter of John DOE and Roe Corporation.
• Court: New Jersey Superior Court

Page 108

294 N.J.Super. 108

682 A.2d 753

In Matter of John DOE and Roe Corporation.

Superior Court of New Jersey,

Law Division,

Atlantic County.

Decided Jan. 31, 1996.

Angelo Bianchi, Nutley, for petitioner.

William Gicking, Thomas W. Goan, Jr. and Linda A. Rinaldi, Trenton, for respondent (Office of the Attorney General, State of New Jersey).

RICHARD J. WILLIAMS, A.J.S.C.

Petitioners John Doe and Roe Corporation, having been served with Investigative Interrogatories under New Jersey's RICO statute, N.J.S.A. 2C:41-1 to 41-6.2, come before the court to have the Interrogatories modified or set aside.

On July 27, 1995, the Attorney General's office served petitioners with Investigative Interrogatories pursuant to N.J.S.A. 2C:41-5. The Interrogatories directed petitioners to appear at the offices of the Division of Criminal Justice Organized Crime and Racketeering Bureau to furnish information demanded therein in connection with an investigation of the alleged "control and financing of Roe Corporation and its owner John Doe by Organized Crime." September 11, 1995, was designated as the return date for response to the Interrogatories, which date was thereafter extended by the Attorney General to September 18, 1995. The Interrogatories further indicated that compliance could be effected by delivery of all of the requested materials, prior to the return date, to a designated state police detective.

On September 12, 1995, petitioners initiated proceedings in Essex County, pursuant to N.J.S.A. 2C:41-5j, to modify or set aside the Investigative Interrogatories. The next morning, on September 13, 1995, the Attorney General filed a Petition in Atlantic County, pursuant to N.J.S.A. 2C:41-5i, to Compel Answers to the Interrogatories. The files were sealed by the court in both counties.

On September 29, the court dismissed the Attorney General's Petition to Compel Answers as prematurely filed, based upon the pendency of petitioners' application in Essex County. Thereafter, on October 2, the proceedings were transferred to Atlantic County for disposition.

Petitioners assert a potpourri of arguments upon which their requests for relief are based. Some are asserted with greater clarity than others. As set forth in their brief, those arguments are as follows:

* " N.J.S.A. 2C:41-5 is unconstitutional";

* "They [Investigative Interrogatories] violate [Petitioners'] right to be free from unreasonable searches and seizures and they fail to establish any connection between [Roe Corporation's] records and the Attorney General's investigation";

* "They violate [petitioners'] right to due process of law";

* "They violate [petitioners'] right to be free from self-incrimination";

* " N.J.S.A. 2C:41-5 was not enacted to be used against targets of RICO investigations"; and

* "Most of the questions asked are so broad, overbearing and not capable of being fully answered, or not of a nature to lead to relevant discoverable matter, that they should be struck."

In addressing these arguments, an understanding of the history of our RICO statute is helpful.

On October 15, 1970, the United States Congress enacted the Racketeer Influenced and Corrupt Organizations (RICO) provisions of the Organized Crime Control Act as a weapon against the pervasive influence of organized crime. See, 18 U.S.C.A. §§ 1961 to 1968. RICO was predicated upon the realization that organized crime and its predatory practices in business ventures threatened the integrity of the American economy and the security of the public. See, S.Rep. No. 617, 91st Cong., 1st Sess., 76-79 (1969). The RICO Act enhanced efforts to combat the evils of organized crime through the creation of new criminal offenses in circumstances where businesses were acquired, controlled, or operated through activities or funds originating from patterns of racketeering activity. See, 18 U.S.C.A. §§ 1961, 1962. In addition, it created new causes for civil relief and included provisions for private enforcement of civil RICO claims. See, 18 U.S.C.A. § 1964. It also created additional investigative tools in the form of investigative demands, 18 U.S.C.A. § 1968; and provided for sanctions in the form of forfeiture and treble damages. 18 U.S.C.A. § 1964.

In the decades following the federal enactment of RICO, many states have adopted RICO-type statutory schemes. See, Ariz.Rev.Stat.Ann. 13-2301 to 13-2316; Cal.Penal Code 186-186.8; Colo.Rev.Stat.Ann. 18-17-101 to 18-17-109; Conn.Gen.Stat.Ann. 53-393 to 53-403; Del.Code Ann. tit. 11, 1501-1511; Fla.Stat.Ann. 895.01-895.09; Ga.Code Ann. 16-14-1 to 16-14-15; Haw.Rev.Stat. 842-1 to 842-12; Idaho Code 18-7801 to 18-7805; Ill.Rev.Stat. ch. 56 1/2 , 1651-1660; Ind.Code Ann. 35-45-6-1 to 35-45-6-2; La.Rev.Stat.Ann. 15:1351-56; Miss.Code Ann. 97-43-1 to 97-43-11; Nev.Rev.Stat.Ann. 207.350-.520; N.J.S.A. 2C:41-1 to 2C:41-6.2; N.M.Stat.Ann. 30-42-1 to 30-42-6; N.Y.Penal Law 460.00-.80; N.C.Gen.Stat. 75D-1 to 75D-14; N.D.Cent.Code 12.1-06.1-01 to 12.1-06.1-08; Ohio Rev.Code Ann. 2923.31-.36; Okla.Stat.Ann. tit. 22, 1401-1419; Or.Rev.Stat. 166.715-.735; Pa.Cons.Stat.Ann. tit. 18, 911; R.I.Gen.Laws 7-15-1 to 7-15-11; Tenn.Code Ann. 39-12-201 to 39-12-210; Utah Code Ann. 76-10-1601 to 76-10-1609; Wash.Rev.Code Ann. 9A.82.001-.904; Wis.Stat.Ann. 946.80-.88.

New Jersey enacted a Racketeering section in 1981 as part of its Code of Criminal Justice. L.1981, c. 167 (codified at N.J.S.A. 2C:41-1 to 41-6.2.) The express legislative intent of New Jersey's RICO statute is set forth in section 2C:41-1.1, which provides:

The Legislature hereby finds and declares to be the public policy of this State, the following:

a. By enactment of the "Criminal Justice Act of 1970," P.L.1970, c. 74 (C. 52:17B-97 et seq.), the Legislature recognized that the existence of organized crime and organized crime type activities presents a serious threat to the political, social, and economic institutions of this State.

b. Despite the impressive gains of our law enforcement agencies, organized crime and similar activities in this State are still a highly sophisticated, diversified and widespread activity that annually drains millions of dollars from the State's economy by unlawful conduct and the illegal use of force, fraud and corruption. In recent years, that organized crime and organized criminal activity has [sic] spread to the operation of otherwise legitimate businesses.

c. In order to safeguard the public interest, effective criminal and civil sanctions are needed to prevent, disrupt and eliminate the infiltration of organized crime type activities which are substantial in nature into the legitimate trade or commerce of this State. It is, therefore, in the public interest to provide that activity which is inimical to the general health, welfare and prosperity of the State and its inhabitants be made subject to strict civil and criminal sanctions.

Like its federal counterpart, the New Jersey RICO statute is premised on the need to address the influence of organized crime upon New Jersey businesses. One mechanism authorized in the Federal RICO statute to combat organized crime was the use of investigative demands. See, 18 U.S.C.A. § 1968. Like the federal RICO statute, the New Jersey RICO statute also provides for the issuance of investigative demands, referred to in this State as "Investigative Interrogatories." N.J.S.A. 2C:41-5a, provides:

Whenever the Attorney General determines that there exists a reasonable suspicion that any person or enterprise may have information or be in possession, custody, or control of any documentary materials relevant to an investigation under this chapter, or whenever the Attorney General believes it to be in the public interest that an investigation be made pursuant to this chapter, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon the person, an investigative interrogatory requiring him to answer and produce materials for examination.

Pursuant to this section, the Attorney General served the Investigative Interrogatories herein, thereby giving rise to the application to modify or set aside now before this court.

In the first of their challenges to the Interrogatories, petitioners argue that the RICO statute is "unconstitutional" in that it impermissibly gives the Attorney General the power to act as both prosecutor and grand jury. Petitioners' general claim of unconstitutionality sounds in the nature of a separation of powers argument, although not precisely so stated.

Petitioners argue that because the Investigative Interrogatories require that the requested information be furnished directly to the Attorney General, the Attorney General is therefore given the power to act as both prosecutor and grand jury. Petitioners cite State v. Hilltop Private Nursing Home, Inc., 177 N.J.Super. 377, 426 A.2d 1041 (App.Div.1981), to support an assertion that the Attorney General does not possess and cannot exercise such investigative powers.

This reliance upon Hilltop is misplaced. In Hilltop the court recognized the independence of the grand jury as a public institution and reaffirmed the principle that a prosecutor did not have the inherent power to subpoena any individual to appear before the prosecutor's office and produce evidence. Id. at 389, 426 A.2d 1041 (citing State v. Foy, 146 N.J.Super. 378, 391, 369 A.2d 995 (Law Div.1976), app. dism. 153 N.J.Super. 503, 380 A.2d 301 (App.Div.1977); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)). The prosecutor could only issue a subpoena duces tecum returnable for a date on which a grand jury would actually be sitting, and although such a subpoena could allow for voluntary delivery of the requested materials directly to the prosecutor, it could not restrict the opportunity to present the materials directly to the grand jury if the witness so desired. Hilltop was premised, however, on the extent of powers...