U.S. v. Hooker

Decision Date10 March 1988
Docket NumberNo. 87-5026,87-5026
Citation841 F.2d 1225
PartiesUNITED STATES of America, Plaintiff-Appellee, v. J. Murray HOOKER, II, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Philip Steward Marstiller, Richmond, Va., (J. Jay Litten, Litten, Sipe and Miller, Harrisonburg, Va., Barbara J. Gaden, Richmond, Va., Jeffrey C. Southard, Hazel, Thomas, Fiske, Beckhorn & Hanes, P.C., Richmond, Va., on brief), Milton Gordon Widenhouse, Jr., Raleigh, N.C., Todd Clark Concormon, for defendant-appellant.

Sara Bradkin Criscitelli, Dept. of Justice, Washington, D.C., William Graham Otis, Asst. U.S. Atty., Alexandria, Va., (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting en banc.

DONALD RUSSELL, Circuit Judge:

The appellant Hooker was indicted on three charges: (I) conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 (1982); (II) conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846 (1982); and (III) conspiracy to commit a RICO offense in violation of 18 U.S.C. Sec. 1962(c) (1982). Two weeks before trial Hooker moved to dismiss Count III for failure to include one element of the substantive offense, namely, that the business enterprise had an effect on interstate commerce. The district judge found the motion to be untimely. At the close of the government's case Hooker again raised the sufficiency of the indictment. The district judge denied the motion for judgment of acquittal, saying that the appellant should have addressed this issue by requesting a bill of particulars. The trial of the case resulted in a verdict of guilty on all three counts, with sentences of two years on the first count, two years on the second count, to be served consecutively, and four years on the third count to be served concurrently with the sentences on the first two counts. Following the jury verdict, Hooker renewed his motion to arrest judgment on Count III but the court denied this motion because even if there had been a deficiency in the indictment in Count III, there was no prejudice to the defendant.

The case was initially heard before a panel of this Court. Before the filing of an opinion herein, the case was consolidated for hearing en banc with the related cases of United States v. Pupo, and United States v. Govantes, 841 F.2d 1235, because it was thought that the dispositive issue was the same in the cases. There was some difference in the facts of the cases and it has been considered better to file the en banc decisions in the cases separately. This opinion is, therefore, confined to the Hooker case and the opinion in Pupo and Govantes is being filed simultaneously.

I.

The primary question on appeal is whether the failure to include an allegation of an effect on interstate commerce in a RICO charge requires the dismissal of the count and the voidance of the conviction on that charge. We agree that Count III of the indictment was fatally defective and that the conviction thereon must be reversed. The convictions on Counts I and II, however, are affirmed.

II.

Any extensive statement of the facts of this case is unnecessary to the decision of the specific issues of law presented for review. It is sufficient that the appellant J. Murray Hooker II, who was an attorney licensed to practice law in the Commonwealth of Virginia, had as two of his clients Michael T. Miller and Donald Wayne Thagard, both of whom were ostensibly in the construction business but were actually drug traffickers engaged in the distribution of cocaine. Hooker set up corporations and trusts for Miller and Thagard, allegedly to conceal their assets and income arising out of their illegal activity, an activity known popularly as money laundering. Because of these actions, Hooker was indicted.

III.

Count III of that indictment alleged a conspiracy to violate 18 U.S.C. Sec. 1962(c). 1 The issue in this case is whether the failure of Count III of the indictment to include one essential element of the offense charged in the count invalidated this count of the indictment and required its dismissal. The alleged fatal omission was the failure to charge that the enterprise had an effect on interstate commerce. There is no dispute that this requirement of "an effect on interstate commerce" is an essential element of the offense established in the RICO statute. As the court in United States v. Sinito, 723 F.2d 1250 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984), summarized it, there are five elements that the Government must prove for a substantive RICO offense: (1) the existence of an enterprise; (2) the defendant's association with the enterprise; (3) the defendant's participation in the affairs of the enterprise; (4) a pattern of racketeering activity; and (5) the enterprise's effect on interstate or foreign commerce. See also United States v. Diecidue, 603 F.2d 535, 536 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980). Count III of this indictment largely paraphrased the conduct required for a RICO offense with section 1962(c) but failed to allege that the enterprise had any effect on interstate commerce or to state, either directly or through incorporation by reference, any facts that would show that the enterprise affected interstate commerce.

In Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962), the Court stated two of the criteria by which the sufficiency of an indictment under the Fifth and Sixth Amendments may be measured:

These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,' " and, secondly, " 'in the case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' " (citations omitted)

This same case declared, contrary to the ruling below, that "a bill of particulars cannot save an invalid indictment." Russell, 369 U.S. at 770, 82 S.Ct. at 1050. Moreover, again contrary to the ruling below, a motion that an indictment fails to charge an offense may be made at any time before verdict. Fed.R.Crim.P. 12(b).

It is the appellant's contention that the fifth element of a RICO offense (that the business enterprise affected interstate commerce) was an essential element of this federal crime, thus making the indictment insufficient on its face and mandating vacation of judgment of conviction on this count for failure to state a RICO offense. The government concedes, as it must, that this element of the RICO offense is not expressly included in Count III, but it contends that the indictment is nonetheless sufficient to state an offense for any of four reasons. We address those reasons seriatim.

A.

It is the government's primary position that, despite the failure to include in the indictment any charge that defendant's conduct involved interstate commerce, such omission was cured by the citation of section 1962(c) in the indictment. The difficulty with this argument is that, in testing the sufficiency of an indictment, "it is the statement of facts in the pleading, rather than the statutory citation that is controlling...." United States v. Wuco, 535 F.2d 1200, 1202 n. 1 (9th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976); see also, United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 464, 85 L.Ed. 788 (1941). And that has for long been the consistent rule in this Circuit. Half a century ago Judge Parker, speaking for a unanimous court, put it: "It is elementary that every ingredient of crime must be charged in the bill, a general reference to the provisions of the statute being insufficient." Hale v. United States, 89 F.2d 578, 579 (4th Cir.1937). We have repeatedly reaffirmed this rule in subsequent cases. United States v. Hayes, 775 F.2d 1279, 1282 (4th Cir.1985); United States v. Pomponio, 517 F.2d 460, 461 (4th Cir.1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975). Moreover, this holding is in accord with the rule adopted in at least eight circuits. U.S. v. Kurka, 818 F.2d 1427, 1430-31 (9th Cir.1987); United States v. McLennan, 672 F.2d 239, 242 (1st Cir.1982); United States v. Jones, 647 F.2d 696, 699-700 (6th Cir.1981), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981); United States v. Camp, 541 F.2d 739, 740 (8th Cir.1976); United States v. Wabaunsee, 528 F.2d 1, 3 (7th Cir.1975); United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir.1973), cert. denied, 412 U.S. 949, 93 S.Ct. 3007, 37 L.Ed.2d 1001 (1973); United States v. Beard, 414 F.2d 1014, 1017 (3d Cir.1969); Robinson v. United States, 263 F.2d 911, 912 (10th Cir.1959). Further, this is the rule in the vast majority of the state courts, State v. Huntley, 473 A.2d 859, 863-64 (Me.1984), and particularly interesting, it is the rule in all the states of this Circuit with a single exception. Ayre v. State, 291 Md. 155, 433 A.2d 1150, 1158 (1981); State v. Cook, 272 N.C. 728, 158 S.E.2d 820, 822 (1968); State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638, 639 (1963); Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411, 413 (1976); contra, State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61, 62 (1980). Were this not the rule, the result would be that stated in United States v. Berlin, supra:

The deficiency was not cured by the fact that each count cited the statute that appellant is alleged to have violated. Although the statutes in question explicitly require knowledge of the falsity, if this were enough to cure a deficient statement,...

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