U.S. v. Thompson, s. 81-5176

• Citation: 685 F.2d 993
• Decision Date: 04 August 1982
• Docket Number: 81-5490 and 81-5495,Nos. 81-5176,s. 81-5176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Aubrey THOMPSON, Thomas Edward Sisk and Charles Frederick Taylor, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 993

685 F.2d 993

UNITED STATES of America, Plaintiff-Appellee, v. William Aubrey THOMPSON, Thomas Edward Sisk and Charles Frederick Taylor, Defendants-Appellants.

Nos. 81-5176, 81-5490 and 81-5495.

United States Court of Appeals Sixth Circuit.

Argued April 26, 1982.

Decided Aug. 4, 1982.

Henry A. Martin, Haile & Martin, W. Gary Blackburn, Barnett & Alagia, Robert C. Watson, Nashville, Tenn., for defendants-appellants.

Joe B. Brown, U. S. Atty., William Cohen, Asst. U. S. Atty., Nashville, Tenn., William C. Bryson, Chief, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before EDWARDS, Chief Judge, and LIVELY, ENGEL, KEITH, BROWN, ^* KENNEDY, MARTIN, JONES, CONTIE and KRUPANSKY, Circuit Judges. ^**

GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

This case was heard en banc on April 26, 1982. The en banc hearing was preceded by a decision of a panel consisting of three thoughtful and experienced judges of this court who had reversed and vacated conditional pleas of guilty tendered by the three defendants in this case. The panel's reasoning was that the United States Attorney's indictment of these three individuals under the Racketeering Influenced and Corrupt Organizations statute, 18 U.S.C. § 1961 et seq. (1976), (popularly known as RICO), was fatally defective in the fact that it alleged that the "enterprise" referred to in the RICO statute was "The Office of Governor of the State of Tennessee." The panel held "RICO's remedial provisions show that government entities are neither appropriate nor intended RICO 'enterprises.' " U. S. v. Thompson, 669 F.2d 1143, 1148 (6th Cir. 1982).

Thus the issue presented on this appeal is: whether appellants' convictions and sentences on voluntary pleas of guilty must be invalidated by this court because, as appellants claim, the indictment under the RICO statute illegally alleged that "The Office of Governor" of the State of Tennessee was the "enterprise" which is an integral part of the RICO statute?

We answer this question in the negative. We do so on the basis of 1) the breadth of RICO's statutory language, 2) the unanimity of judicial precedent on this precise point in other circuits, all of which cases the United States Supreme Court has refused to review, and 3) the legislative history of the RICO statute.

We also, however, question the wisdom of continued employment of this form of indictment. The language of the RICO statute allows for but does not compel use of this device. We believe that

identifying "The Office of Governor" ¹ (or for that matter any other governmental office) as the "enterprise" under RICO unnecessarily tends to disrupt comity in federal-state relationships and as we will show later in this opinion, the statute itself provides readily available unobjectionable substitute language.

THE POSTURE OF THIS CASE

This case was heard by the District Court and decided without trial because the three defendants pled guilty. Their pleas to one count of the indictment led to lengthy Rule 11 proceedings before the District Judge designed to test defendants' acquaintance with the allegations of the indictment and the voluntariness of their pleas. The sentences which were entered were in accordance with the terms of the plea agreement. This appeal is taken under an agreement involving the prosecution, the defendants and the court that the sentences would not become final until and unless the legality of the indictment as to the single issue presented here had been tested and affirmed.

THE FACTS (AS ALLEGED AND ADMITTED)

As a consequence, we recite the facts from the indictment-the factual validity of which each defendant admitted under oath in open court.

The indictment alleged that these three appellants (and two other defendants not involved in this appeal) conspired together (Count I) ² to solicit and accept bribes for influencing the granting of pardons and paroles and delays or denials of extradition to persons who had been convicted of or charged with crime. Count II ³ detailed the specific illegal acts related in the preceding sentence. Appellants do not deny their participation in or the illegality of such conduct. Nor do they deny that such activities fall within the racketeering crimes defined by the RICO statute. They do contend with vigor that the indictment's identification of "The Office of Governor" as the "enterprise" referred to in RICO is both a misinterpretation of Congressional intent and an unconstitutional invasion of state authority.

I. STATUTORY CONSTRUCTION

This court has recently dealt with another attack upon the RICO statute and in its opinion has set forth the broad principles of statutory construction there (and here) involved.

In what follows, we quote from this court's opinion in United States v. Sutton, 642 F.2d 1001 (6th Cir. 1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3144, 69 L.Ed.2d 995 (1981). The following material describes the breadth and inclusiveness of the RICO statute as adopted by Congress as we described it in Sutton. At various points, in italics, we interpolate so as to show the application of this statutory language to our present case:

"Each of the appellants was convicted of conducting the affairs of an 'enterprise' affecting interstate commerce through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (1976), and of conspiracy to commit that offense, in violation of 18 U.S.C. § 1962(d) (1976). The jury returned guilty verdicts as to the nine appellants on 308 counts.

"C.

"If the meaning of a criminal statute adopted by Congress is clear and unambiguous, then there is no need for the courts to turn to interpretation by means of legislative history or rules of statutory construction. Very recently the Supreme Court in a unanimous opinion has reminded us, 'It is elementary that "(t)he starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (95 S.Ct. 1917, 1935, 44 L.Ed.2d 539) (1975) (Powell J., concurring); see Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (98 S.Ct. 2370, 2375, 57 L.Ed.2d 239) (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472 (97 S.Ct. 1292, 1300, 51 L.Ed.2d 480) (1977).' Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979).

"Title IX, the section which each of these defendants is charged with violating, provides in applicable part:

'It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.'

18 U.S.C. § 1962(c) (1976).

"We have previously noted that the dispute in this case concerns the meaning of the term 'enterprise.' Enterprise is a common English word which, as indicated in Webster's Third New International Dictionary Unabridged, means:

'a. a plan or design for a venture or undertaking

'b. venture, undertaking, project; esp: an undertaking that is difficult, complicated, or has a strong element of risk

'c. a unit of economic organization or activity

'd. any systematic purposeful activity or type of activity.'

"These definitions are all absolutely neutral on the question of whether a particular enterprise is lawful or unlawful (or we might interpolate 'public or private').

"Congress itself, however, recognized that the meaning of enterprise was of critical importance in the statute and hence provided a supplementary statutory definition. 18 U.S.C. § 1961 begins with definitions, and the fourth one reads: ' "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; ....' (Emphasis added.) It should be noted that in this definition, the word 'enterprise' is used without any modifiers, and the same word is employed throughout Title IX without modifiers (except, as we will point out below, the word 'any').

"Obviously Congress would have known how to characterize an illegal enterprise or a legal enterprise had it seen fit to do so. ( Obviously Congress would also have known how to characterize a private enterprise or a public enterprise had it seen fit to do so. ) Its choice of the single word 'enterprise' and its actual definition of its seems to us of major importance.

"Over and above the fact that Congress used the word 'enterprise' without modifiers, its definition clearly includes both legal entities and 'any ... group of individuals associated in fact although not a legal entity.'

"Further, under the second section of the statute entitled 'Prohibited Activities,' subsections (b) and (c), Congress employed the word 'enterprise,' modified by the word 'any'; thus, subsection (c) provides: 'It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.' The use of the term 'any' before 'enterprise' helps make clear that 'enterprise' is used in an all encompassing sense. This certainly includes both legal and illegal enterprises. ( The same breadth may be said to allow for (but not compel) identification of a government office as an 'enterprise.') In this regard the Second Circuit in United States v. Altese, has said:

'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. (Likewise, nothing in this interpretation demonstrates a...