U.S. of America v. Carl Sutton, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert Rankin, Samuel Lee Harris, Charles Edward Craven, Viola Holmes.

• Citation: 642 F.2d 1001
• Decision Date: 03 December 1980
• Docket Number: Nos. 78-5134,s. 78-5134
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl SUTTON, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert Rankin, Samuel Lee Harris, Charles Edward Craven, Viola Holmes, Defendants-Appellants. to 78-5139 and 78-5141 to 78-5143.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1001

642 F.2d 1001

UNITED STATES of America, Plaintiff-Appellee, v. Carl SUTTON, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert

Rankin, Samuel Lee Harris, Charles

Edward Craven, Viola Holmes,

Defendants-Appellants.

Nos. 78-5134 to 78-5139 and 78-5141 to 78-5143.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1980.

Decided Dec. 3, 1980.

Eugene D. Smith, Cincinnati, Ohio (Court-appointed), for defendant-appellant in No. 78-5134.

James C. Cissell, U. S. Atty., Terry W. Lehmann, Asst. U.S. Atty., Cincinnati, Ohio (David B. Smith, Atty., U.S. Dept. of Justice, Washington, D.C., of counsel), for plaintiff-appellee in all cases.

James R. Willis, Willis, Whitehead, Character, Adrine, Childs, Blackwell & Davison, Cleveland, Ohio, for defendants-appellants in Nos. 78-5135 and 78-5136.

John Carson, Cleveland, Ohio, for defendant-appellant in No. 78-5136.

Philip L. Pleska, Lebanon, Ohio (Court-appointed), for defendant-appellant in No. 78-5137.

James D. Ruppert, Franklin, Ohio (Court-appointed), for defendant-appellant in No. 78-5138.

Calvin W. Prem, Cincinnati, Ohio (Court-appointed), for defendant-appellant in No. 78-5139.

Andrew B. Dennison, Batavia, Ohio (Court-appointed), for defendant-appellant in No. 78-5141.

Henry E. Sheldon, Cincinnati, Ohio (Court-appointed), for defendant-appellant in No. 78-5142.

Ronald A. Lipez, Cincinnati, Ohio (Court-appointed), for defendant-appellant in No. 78-5143.

Before EDWARDS, Chief Judge, and WEICK, LIVELY, ENGEL, KEITH, MERRITT, BROWN, KENNEDY, BOYCE F. MARTIN, Jr., and JONES, Circuit Judges, sitting En Banc.

EDWARDS, Chief Judge.

This appeal has been heard en banc before the United States Court of Appeals for the Sixth Circuit. The case was originally heard by a three-judge panel of this court which reversed the convictions of the appellants involved herein by a 2-1 vote. A motion for rehearing en banc filed by the United States was granted by majority vote of the full court.

I. THE TITLE IX "ENTERPRISE" ISSUE

A. Introduction

The principal issue posed in this case is whether or not a major criminal statute, Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. § 1961 et seq. (1976), adopted by Congress after lengthy consideration over a period of nearly 20 years, should be interpreted by the courts by changing the single word "enterprise" (used repeatedly therein without adjectives) to mean "ostensibly legitimate enterprise." The basic argument is that Congressional concern about the impact of organized crime and racketeering, upon legitimate businesses was clearly demonstrated in Congressional hearings and reports which preceded the adoption of this statute in 1970. Therefore, appellants reason, this statute must be construed to be applicable only in cases where the criminal activity involved is shown to be "ostensibly legitimate."

Appellants have not pointed to any language in the statute itself which supports their contention. On the contrary, they rely entirely upon implications which they find in legislative history and certain canons of statutory construction to argue for this judicial amendment.

We believe, however, that the statute itself makes plain that Congress intended to bring the full force of federal law enforcement into the effort to destroy organized crime and that it had no intention of limiting the federal effort to just those "ostensibly legitimate" enterprises which organized crime might use.

The cardinal rule of statutory interpretation is that the statute should be interpreted by the courts as written, unless it contains an ambiguity. As we will show in Section III of this opinion, we find no ambiguity in the term "enterprise" as used in Congress' deep concern with this problem is exemplified in the history of the extensive hearings of the Special Senate Committee to Investigate Organized Crime in Interstate Commerce in the years 1950 and 1951. In these years Senator Kefauver and his associates conducted hearings on organized crime in all major cities in the nation exposing to public view for the first time the successful operation of many forms of racketeering. The results of the Kefauver investigations were such as to show Congress that in most major population centers illegal activities such as gambling, prostitution, loansharking, fencing and drug traffic were under the domination of organized crime through the employment of intimidation, murder and corruption. The impact of these revelations did not, however, arouse state and local governments to take effective measures against organized crime.

the statute. Congress recognized that the illegitimate enterprises of organized crime which it was concerned about would frequently make use of or subvert or seek to dominate otherwise lawful enterprises to a greater or lesser degree, and deliberately employed the term "enterprise" without qualification.

When in the '60's Congress turned its attention again to this problem, the records of the Permanent Subcommittee on Investigations of the Committee on Government Operations, 1963-1970, show clearly that Senator McClellan and his associates found that criminal organizations functioning on an interstate basis were able to evade, avoid, or, in some cases, corrupt the 50,000 separate and independent police departments of the United States to a degree that let organized crime flourish almost without interference in the biggest metropolitan areas of the nation. This record convinced the Committee that interstate racketeering should be made a matter of direct federal concern. It was out of these hearings that Title IX of the Organized Crime Control Act of 1970, named the "Racketeer Influenced and Corrupt Organizations Act" was born on October 15 in 1970.

Appellant Sutton and his associates argue that the government failed to plead and prove that the nine appellants in this case had engaged in an enterprise which was "ostensibly legal." Hence, they argue that defendants' enterprise by being totally illegal should escape the augmented penalties for their crimes authorized by this federal statute. In short, it is asserted that this statute, so long and carefully considered by Congress, should be interpreted so as to require the prosecution to prove a negative: that an organized crime operation is not totally illegal. If it is totally illegal, under appellants' view, it becomes exempt from the strictures of Title IX of the Organized Crime Control Act of 1970. In addition, on this record it must likewise be argued by appellants that even if the indictment alleges and the proofs show continual use of various ostensibly legal businesses for the purposes of the illegal enterprise and serious adverse impact on others, these facts are insufficient unless the government has proved that the criminal enterprise itself was "ostensibly lawful."

The seven large volumes recording this six week trial show a picture of a centrally directed criminal enterprise involving at least five racketeer-influenced or racketeer-impacted business organizations to commit the offense of trafficking in drugs on a wide scale, supported by ancillary illegal activities of trafficking in stolen jewelry, household goods, and guns. Since we find no reason for such a strained construction in the statutory language itself, nor, as we will detail below in Section IV, in its legal history, we decline the appellants' invitation to emasculate Title IX of the Organized Crime Control Act of 1970.

To conclude this introductory section, we point out that in affirming a prosecution under Title IX of the Organized Crime Control Act of 1970, the Supreme Court of the United States, dealing with arguments very similar to those we have referred to above and will discuss in detail later, quoted from the findings of fact which preceded the Act itself as follows:

The basic purpose of the Organized Crime Control Act of 1970, Pub.L.No. 91-452, 84 Stat. 922, 923, was "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." The content of the Act reflects the dedication with which the Legislature pursued this purpose.

Iannelli v. United States, 420 U.S. 770, 786, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975) (emphasis added).

B. The Indictment and Trial

The indictment ¹ in this case named five persons as key figures in the operation of a substantial criminal conspiracy. These five were Herschel Weintrub, the manager of Spencer's Jewelry, Middletown, Ohio; Carl Sutton, Jr., alleged to have been with Weintrub "partners in the illegal enterprise described in this indictment"; Edwin Arthur Adams, proprietor of Edwin's Jewelry, Franklin, Ohio; Joseph Elkins, an officer of the John Carter Exterminating Company, Cleveland, Ohio; and, Dyeatra Ann Carter, an officer of the John Carter Exterminating Company, Cleveland, Ohio. Four other appellants, Hensley, Harris, Craven and Rankin, were indicted as important figures in the distribution of narcotics and interstate traffic in stolen goods acquired by the "enterprise." The ninth defendant in this trial, Viola Holmes, was indicted as a "runner" in the drug traffic between Sutton in the Cincinnati area and Carter and Elkins in Cleveland. In number of counts (and convictions on same) the largest aspect of the "enterprise" involved in this case was the buying, possessing and selling of narcotics. Counts 1 and 2 of the indictment alleged that appellants and others not involved in this appeal "did unlawfully, wilfully, and knowingly combine, conspire, confederate and agree together and with each other and with ninety-six other persons, none of whom are named as defendants herein, and with diverse other persons whose names are to the Grand Jury...