U.S. v. Kravitz, No. 83-1484

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore GIBBONS, Circuit Judge, and ATKINS; GIBBONS
PartiesUNITED STATES of America, Appellee, v. Charles S. KRAVITZ, Appellant.
Docket NumberNo. 83-1484
Decision Date24 January 1984

Page 102

738 F.2d 102
UNITED STATES of America, Appellee,
v.
Charles S. KRAVITZ, Appellant.
No. 83-1484.
United States Court of Appeals,
Third Circuit.
Argued Jan. 24, 1984.
Resubmitted Pursuant to Rule 12(6) on Sept. 26, 1984.
Decided Oct. 3, 1984.
Rehearing and Rehearing En Banc Denied Oct. 29, 1984.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Gary S. Glazer (argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Alan J. Hoffman (argued), Edward S. Wardell, Carl W. Hittinger, Edmunds J. Brokans, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., Stanford Shmukler (argued), Philadelphia, Pa., for appellant.

Before GIBBONS, Circuit Judge, and ATKINS, District Judge. *

Page 103

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Charles Kravitz appeals from a judgment of sentence imposed following his conviction for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. (1982) ("RICO") and the Travel Act, 18 U.S.C. Sec. 1952 (1982). He contends that his conviction should be set aside, and that in any event the court erred in ordering forfeiture of his interest as a stockholder in American Health Programs, Inc. (AHP). We hold that his objections to the RICO and Travel Act convictions are without merit, 1 and that the forfeiture order was proper. Thus we affirm.

I.

Kravitz, a dentist, was the sole stockholder of AHP, a corporation engaged in the health care delivery business. In order to obtain a renewal of a contract for dental and other services with the Philadelphia Fraternal Order of Police (FOP), Dr. Kravitz made three cash payments totalling $7,000 between May 14, 1982 and June 4, 1982 to Robert Hurst, President of the FOP. He also made one payment of $1,000 to Michael Lutz, Secretary of the FOP. Both Hurst and Lutz were at the same time working undercover with the F.B.I. Kravitz was indicted for violation of RICO and the Travel Act, 18 U.S.C. Secs. 1952, 1961-1963 (1982). The predicate offenses for the RICO violation were the briberies of Hurst and Lutz. Kravitz was tried before a jury and convicted on one RICO count and one Travel Act count. On the RICO count, Kravitz was sentenced to four years incarceration and a $25,000 fine.

After the jury returned a guilty verdict on the RICO count, several questions were prepared for submission to the jury. Under Rule 31(e) of the Federal Rules of Criminal Procedure, if an "indictment ... alleges an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any." The government proposed the following questions:

(1) Did the defendant own any shares of stock in American Health Programs?

(2) Did he maintain this interest in violation of the racketeering laws?

(3) Shall such shares of stock be forfeited to the United States?

(4) Did the defendant hold a position in American Health Programs which gave him a source of influence over the company?

(5) Did he use the position to conduct the affairs of American Health Programs through a pattern of racketeering activity?

(6) Shall the defendant be required to forfeit his position to the United States? 2

The jury answered questions 1, 2, 4, and 5 affirmatively, and thereby found that Kravitz had used his ownership position in AHP to engage in a pattern of racketeering activity. Despite the conclusion such responses would seem to compel, the jury answered questions 3 and 6 in the negative. Although it was the government that originally prepared the questions, prior to their submission, it attempted to withdraw questions 3 and 6. Although the court submitted the questions over the government's objections, it specifically reserved for argument

Page 104

whether those questions, if answered negatively, were binding on the court. The district court subsequently decided that they were not. The court refused to follow the jury's recommendation and ordered forfeiture of Kravitz's stock and position in AHP.

II.

Appellant raises three arguments on appeal on the forfeiture issue: (1) even if the forfeiture of property held in violation of RICO is mandatory, it was for the jury to decide the extent of the property used to conduct racketeering; (2) having had questions 3 & 6 submitted to the jury, appellant acquired a sixth amendment right to trial by jury on those issues; and (3) forfeiture was in violation of the eighth amendment's ban against disproportionate sentencing.

A.

A primary question presented by this appeal is whether forfeiture under section 1963 is mandatory upon a finding that the appellant's property was used to promote racketeering. We conclude, as have all other courts to decide the question, that forfeiture is mandatory. See United States v. Hess, 691 F.2d 188, 190 (4th Cir.1982); United States v. Godoy, 678 F.2d 84, 88 (9th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 390, 78 L.Ed.2d 334 (1983); United States v. L'Hoste, 609 F.2d 796, 809-11 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980).

Several factors compel that conclusion. The first is the plain meaning of the language employed in section 1963(a), stating that "[w]hoever violates any provision of section 1962 ... shall forfeit to the United States" the illegally used interests. As the Fifth Circuit pointed out in L'Hoste, although there are occasions where "shall" has been interpreted to vest discretionary, rather than mandatory, authority to act, the wording of the statute is the most persuasive evidence of Congressional intent. L'Hoste, supra, 609 F.2d at 810. Nor does the legislative history ever discuss forfeiture in discretionary terms, see, e.g., H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 57, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4033; S.Rep. No. 91-617, 91st Cong., 1st Sess. 160 (1969). The wording of the remaining penalties established under section 1963(a) also supports a mandatory interpretation of forfeiture: section 1963(a) states that a defendant "shall be fined not more than $25,000 or imprisoned not more than twenty years, or both " (emphasis added). Thus, where Congress intended for the penalty to be optional, as in the choice between fine or imprisonment, they specified that there was such a choice. The section's wording provides no choice regarding the imposition of forfeiture.

Moreover, a literal reading of section 1963(a) is consistent with RICO purposes. The criminal forfeiture provision was viewed as an innovative means of addressing the spread of organized crime that has infiltrated so many aspects of American society. Of foremost concern during Congressional hearings on RICO was the weakness of current efforts at curtailing the spread of organized crime to legitimate business endeavors. For instance, the Senate Judiciary Committee's report quoted the Attorney General's testimony that:

While the prosecutions of organized crime leaders can seriously curtail the operations of the Cosa Nostra, as long as the flow of money continues, such prosecutions will only result in a compulsory retirement and promotion system as new people step...

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34 practice notes
  • Litgo N.J. Inc v. Comm'r N.J. Dep't of Envtl. Prot., No. 12-1288
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 2013
    ...must be brought in a district court. See Middlesex Cnty. Bd. of Chosen Freeholders, 645 F. Supp. at 719 (citing United States v. Kravitz, 738 F.2d 102, 104 (3d Cir. 1984)). When written in the United States Code, "district court" refers to federal, not state, trial courts. Indeed,......
  • U.S. v. Perholtz, Nos. 86-3032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 8, 1988
    ...RICO is an in personam penalty designed as part of the punishment for the criminal offense committed," United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985); United States v. Huber, 603 F.2d 387, 396 (2d Cir.1979),......
  • U.S. v. Horak, Nos. 86-1473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 1987
    ...The forfeiture of Horak's job is consistent with numerous cases that have interpreted section 1963(a). See e.g., United States v. Kravitz, 738 F.2d 102, 103 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985); United States v. Rubin, 559 F.2d 975, 992 (5th Cir.......
  • Litgo N.J. Inc. v. Comm'r N.J. Dep't of Envtl. Prot., Nos. 12–1288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 6, 2013
    ...must be brought in a district court. See Middlesex Cnty. Bd. of Chosen Freeholders, 645 F.Supp. at 719 (citing United States v. Kravitz, 738 F.2d 102, 104 (3d Cir.1984)). When written in the United States Code, “district court” refers to federal, not state, trial courts. Indeed, other statu......
  • Request a trial to view additional results
34 cases
  • Litgo N.J. Inc v. Comm'r N.J. Dep't of Envtl. Prot., No. 12-1288
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 2013
    ...must be brought in a district court. See Middlesex Cnty. Bd. of Chosen Freeholders, 645 F. Supp. at 719 (citing United States v. Kravitz, 738 F.2d 102, 104 (3d Cir. 1984)). When written in the United States Code, "district court" refers to federal, not state, trial courts. Indeed,......
  • U.S. v. Perholtz, Nos. 86-3032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 8, 1988
    ...RICO is an in personam penalty designed as part of the punishment for the criminal offense committed," United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985); United States v. Huber, 603 F.2d 387, 396 (2d Cir.1979),......
  • U.S. v. Horak, Nos. 86-1473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 1987
    ...The forfeiture of Horak's job is consistent with numerous cases that have interpreted section 1963(a). See e.g., United States v. Kravitz, 738 F.2d 102, 103 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985); United States v. Rubin, 559 F.2d 975, 992 (5th Cir.......
  • Litgo N.J. Inc. v. Comm'r N.J. Dep't of Envtl. Prot., Nos. 12–1288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 6, 2013
    ...must be brought in a district court. See Middlesex Cnty. Bd. of Chosen Freeholders, 645 F.Supp. at 719 (citing United States v. Kravitz, 738 F.2d 102, 104 (3d Cir.1984)). When written in the United States Code, “district court” refers to federal, not state, trial courts. Indeed, other statu......
  • Request a trial to view additional results

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