U.S. v. Altese

• Citation: 542 F.2d 104
• Decision Date: 01 July 1976
• Docket Number: No. 902,D,902
• Parties: UNITED STATES of America, Appellant, v. Frank ALTESE, a/k/a Frankie Feets, et al., Appellees. ocket 76-1008.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 104

542 F.2d 104

UNITED STATES of America, Appellant, v. Frank ALTESE, a/k/a Frankie Feets, et al., Appellees.

No. 902, Docket 76-1008.

United States Court of Appeals Second Circuit.

Argued April 15, 1976.

Decided July 1, 1976.

David G. Trager, U. S. Atty., E. D. N. Y., David Margolis, Fred F. Barlow, Sp. Attys., Brooklyn, N. Y., Shirley Baccus-Lobel, Robert H. Plaxico, Attys., Dept. of Justice, Wash., D. C., for appellant.

Maurice Brill, New York City, for appellee Salvatore Annarumo.

Wild & Goldstein, New York City, for appellee Napoli.

Richard I. Rosenkranz, Brooklyn, N. Y., for appellee Jerry D'Avanzo.

Gustave H. Newman, New York City, for appellee Sabato Vigorito.

Before CLARK, ^* Associate Justice, Ret., and TIMBERS and VAN GRAAFEILAND, Circuit Judges.

PER CURIAM:

This is an appeal pursuant to 18 U.S.C. § 3731 from an order of the District Court dismissing, prior to trial, counts one and two of an eight count indictment alleging gambling and racketeering offenses in violation of the Organized Crime Control Act of 1970, 84 Stat. 922. The indictment charged twenty two defendants in the various counts, with count one charging sixteen of them with being associated with an enterprise engaged in interstate commerce and conducting its affairs through a pattern of racketeering activity and through the collection of debts in violation of 18 U.S.C. § 1962(c); ¹ all twenty two of the defendants were charged in count two with having conspired to violate Section 1962(c), in violation of 18 U.S.C. § 1962(d). ² The remaining counts, none of which are involved here, charged the conduct of an illegal gambling business in violation of 18 U.S.C. § 1955, and § 1952, obstruction of justice by two defendants in violation of 18 U.S.C. § 1510 and conspiracy to violate Sections 1955 and 1952. The counts under § 1952 and § 1510, being counts six and seven, were dismissed without objection of the government for failure to allege essential elements of the offenses.

The gravamen of the two counts before us (counts one and two) is that the named defendants had conducted a large scale gambling business through a pattern of racketeering activity and the collection of unlawful debts, as defined in 18 U.S.C. § 1961(1), (5) and (6). ³ The appellees claimed and the District Court held that Section 1962(c) applied only to a legitimate enterprise that was conducted through a pattern of racketeering activity or the collection of unlawful debts and not to an illegal gambling business. In so holding the district court held that Title IX of the Organized Crime Control Act, of which Section 1962(c) is a part, "deals with the problem of infiltration of legitimate business by persons connected with organized crime" and was not designed by Congress "to cover the types of activity charged in (counts one and two) of this indictment." We disagree and reverse.

1. The Language of the Act :

We first note that each of the four paragraphs of Section 1962 begins with the all inclusive phrase: "It shall be unlawful for any person . . . " who has received any income derived from any pattern of racketeering activity, etc., to use any part of such income in the acquisition of "any enterprise engaged in . . . interstate or foreign commerce." (emphasis supplied). The word "any" is explicit. In addition, we note that in Section 1961 the Congress in defining the words "person" and "enterprise" again uses the word "any". In the light of the continued repetition of the word "any" we cannot say that "a reading of the statute" evinces a Congressional intent to eliminate illegitimate businesses from the orbit of the Act. On the contrary we find ourselves obliged to say that Title IX in its entirety says in clear, precise and unambiguous language the use of the word "any" ⁴ that all enterprises that are conducted through a pattern of racketeering activity or collection of unlawful debts fall within the interdiction of the Act. Congress could, if it intended any other meaning, have inserted a single word of restriction. Instead it left out the word and inserted a clause providing that the provisions of Title IX "be liberally construed to effectuate its remedial purposes." 84 Stat. 947. We cannot in the light of such language hold that Congress did not say what it meant nor meant what it said.

2. The Cases on Title IX:

If the language of Title IX is not found to be so explicit as we hold it to be and we are obliged to construe the language of Title IX, we come out with the same result. As this Circuit held in United States v. Parness, 503 F.2d 430, 439 fn. 12 (1974) ⁵ cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1974), we are obliged to construe the Act liberally. Indeed, Congress declared in the Act itself:

It is the purpose of this Act 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. 84 Stat. 923.

These new penal prohibitions, enhanced sanctions, and new remedies clearly extend to an illegitimate business as well as a legitimate one; to read the Act otherwise does not make sense since it leaves a loophole for illegitimate business to escape its coverage.

We note that three other Circuits have reached this same result. ⁶ United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974) cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638, 44 U.S.L.W. 3397 (1976), United States v. Hawes, 529 F.2d 472 (5th Cir. 1976), and United States v. Morris, 532 F.2d 436 (5th Cir. 1976). We are pleased to make it a foursome.

Reversed and remanded.

VAN GRAAFEILAND, Circuit Judge (dissenting):

Because I believe that the majority's holding radically extends federal jurisdiction to virtually every criminal venture affecting interstate commerce, I must dissent. Although such a large scale incursion by the federal government into matters traditionally of local concern may be constitutionally permissible, I do not believe that such a step should be taken in the absence of clear Congressional direction. With all due respect to my brothers, I am unable to find such a mandate in either the statutory language or the legislative history of Title IX of the Organized Crime Control Act of 1970, 84 Stat. 922, 941-948.

The majority places great reliance on the word "any" which precedes "enterprise" in 18 U.S.C. § 1962. The significance of this word escapes me. "Enterprise" is defined in 18 U.S.C. § 1961(4). If, in fact, that definition encompasses only legitimate business or organizations, placing the word "any" before the defined phrase in § 1962 should not expand its meaning.

Section 1961(4), necessarily at the core of the controversy before us, yet curiously omitted from the majority's opinion, defines "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." While the concluding language of this definition is subject to an expansive interpretation, the well established doctrine of ejusdem generis warns against expansively interpreting broad language which immediately follows narrow and specific terms. United States v. Insco, 496 F.2d 204, 206 (5th Cir. 1974). To the contrary, this maxim counsels courts to construe the broad in light of the narrow. United States v. Baranski, 484 F.2d 556, 566 (7th Cir. 1973). Viewed in this manner, and keeping in mind the traditional rule resolving ambiguities in penal statutes in favor of lenity, United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Archer, 486 F.2d 670, 680 (2d Cir. 1973), ¹ the scope of § 1962 on its face, is, at best, uncertain.

Even were I to agree with the majority's facial reading of the statute, I would, nevertheless, feel duty bound to examine the legislative history to ascertain Congressional intent. In expounding a statute, we must not be guided by a single sentence or word therein. Rather, we must look to the provisions of the whole law so that we may give effect to the legislative will. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975). "It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). Muniz v. Hoffman, 422 U.S. 454, 469, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975).

A review of the legislative history of Title IX leaves no doubt that Congress never contemplated that "enterprise" as used in §§ 1961, 1962 would extend beyond legitimate businesses or organizations. See S.Rep. No. 91-617, 91st Cong., 1st Sess. (1969); H.R.Rep. No. 91-1549, 1970 U.S.Code Cong. & Admin.News, pp. 4007, 4032-4036; Comment, Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for "Criminal Activity", 124 U.Pa.L.Rev. 124, 204-206 (1975). There is nothing in the floor debates that would indicate that any member of Congress expected or desired the far reaching interpretation of Title IX postulated by the majority herein. 116 Cong.Rec. 585-586, 35,193-35,319 (1970); United States v. Moeller, 402 F.Supp. 49, 58 n.8 (D.Conn.1975); United States v. Frumento, 405 F.Supp. 23, 29-30 (E.D.Pa.1975); United States v. Mandel, 415 F.Supp. 997, 19 Cr.L. 2032 (D.Md.1976). Perhaps the most convincing indications of Congressional intent are contained in a lengthy and scholarly response to Title IX's critics by Senator John L. McClellan, the...