United States v. Deardorff, 71 Cr. 111.
| Decision Date | 05 October 1971 |
| Docket Number | No. 71 Cr. 111.,71 Cr. 111. |
| Parties | UNITED STATES of America, Plaintiff, v. J. Howard DEARDORFF et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Whitney North Seymour, Jr., U. S. Atty., by Robert G. Morvillo and D. Gordon III, New York City, for plaintiff.
Davis, Polk & Wardwell by Robt. Fiske, Jr., Curtis, Mallet-Prevost, Colt & Mosle, by Peter Fleming, Jr., Shea, Gallop, Climenko & Gould, New York City, Alan M. Dershowitz, Cambridge, Mass., for defendants Kahn and Teleprompter.
A two count indictment was filed against defendants on January 28, 1971. The first count charges defendants with conspiring to violate 18 U.S.C. § 1952 (the Travel Act) by agreeing to use an interstate facility to intentionally promote, manage, establish or carry on or facilitate the promotion, management, establishment or carrying on of the unlawful activity of bribery. The second count alleges, as a substantive violation of 18 U.S.C. § 1952, that the defendants used interstate facilities to intentionally promote, manage, establish or carry on, the unlawful activity of bribery in violation of the Penal Code of the State of Pennsylvania, or facilitate the promotion, management, establishment or carrying on of such activities.
The Government alleges the following account. On January 18, 1966 defendant Kenneth O. Tompkins, then the mayor of Johnstown, Pennsylvania, and defendants Robert McKee and J. Howard Deardorff, then city councilmen of Johnstown, caused the approval of an ordinance to permit sealed competitive bidding for a cable television franchise in Johnstown. Six days later, on January 24, Irving Kahn, president of Teleprompter, travelled from New York to Johnstown to meet with those three city officials. At the meeting Kahn, Tompkins, McKee and Deardorff agreed that Teleprompter would pay the three Johnstown officials a $15,000 bribe if they would vote in favor of awarding the cable television franchise to Johnstown Cable TV, a subsidiary of Teleprompter.
At the February 1, 1966 meeting of the committee of the whole of the Johnstown City Council, Tompkins, McKee and Deardorff voted to reject all bids on cable television submitted by Teleprompter's competitors.
At a general session of the City Council on February 8, Tompkins made a motion to arrange a meeting with officers of Teleprompter to discuss terms for a cable television franchise. Deardorff seconded the motion, and all three defendant officials voted for it.
Finally, at the March 2 general session of the Johnstown City Council, these three defendants voted for Ordinance No. 3678, which granted Johnstown Cable TV a ten-year exclusive cable television franchise with an option to renew for ten years.
Meanwhile, on February 25, 1966 Kahn and Teleprompter transmitted $7,000 to defendant Tompkins in Johnstown. Tompkins, in turn, gave McKee and Deardorff each $2,000 sometime in March. On August 26, 1966 Kahn and Teleprompter sent Tompkins another payment, this time of $6,035.61. A third payment of $1,464.39 was made to Tompkins by Kahn and Teleprompter on October 20. Tompkins again gave McKee and Deardorff $2,000 each soon after receiving the last installment from Kahn and Teleprompter.
The Government alleges, in sum, that Kahn sent Tompkins a total of $14,500.00, of which Tompkins gave McKee and Deardorff $4,000 apiece. In return, it is charged, the three defendants used their official positions to provide Teleprompter's subsidiary with the exclusive Johnstown cable television franchise.
Defendants have made a variety of pre-trial motions. They move to dismiss the indictment on the ground that their alleged conduct does not violate federal law, and on the ground that the grand jury was improperly selected. They also move to dismiss the conspiracy count. They further move for a bill of particulars and for discovery and inspection. There is also a motion for an order directing the government to ascertain and disclose the fruit of any monitoring it has conducted.
There can be no doubt that the alleged activities of defendants fall within the literal terms of the statute. The relevant part of 18 U.S.C. § 1952, including its title, reads as follows:
Defendants are charged with carrying on unlawful activity in violation of Section 1952(a) (3). The unlawful activity with which they are charged is defined in subsection (b) (2) as ". . . bribery . . . in violation of the laws of the State in which committed or of the United States." The phrase "business enterprise" used in defining unlawful activity in subsection (1) of § 1952(b) is not used in subsection (2) delineating bribery as an unlawful activity. Read literally, therefore, the statute does not require that bribery in violation of § 1952 be connected with a criminal business enterprise. The indictment thus clearly alleges facts bringing defendants within the terms of the statute.
Defendants contend, however, that bribery must be connected with, or in aid of, a racketeering enterprise to violate § 1952. In support of this interpretation they point to the language of the title of § 1952, the section's legislative history, and its recent interpretation in Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). For the reasons which follow, the court rejects defendants' interpretation of § 1952 and finds their alleged conduct within its terms.
The title of § 1952, as reproduced above, refers to "interstate or foreign travel or transportation in aid of racketeering enterprises." Defendants feel that this title, in conjunction with legislative history, requires that connection with racketeering enterprises be considered an element of the offense. However, the title of a statute cannot limit the plain meaning of the text, and is resorted to only where ambiguity already exists. Brotherhood of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1946); United States v. Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185 (1956); Tibke v. Immigration and Naturalization Service, 335 F.2d 42 (2 Cir., 1964). See also Sutherland, Statutory Construction § 4802 (3d ed. Horack 1943). As we have seen above, the body of Section 1952 is clear. There is thus no need to look to the title, an endeavor that in this case would produce, rather than ameliorate, ambiguity.
Were we to seek guidance from the title, however, we would find that it adds nothing to the meaning of the text. The term "racketeering enterprise" is not specifically defined in Title 18, but the terms "racketeering activity" and "enterprise" are defined in 18 U.S.C. § 1961. "Racketeering activity" is defined as "any act which is indictable under any of the following sections of Title 18, United States Code: . . . Section 1952. . . ." Section 1961 (1) (B). "Enterprise" is defined as "any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Section 1961(4). Combining the two definitions a "racketeering enterprise" becomes an individual or group of individuals engaging in acts indictable under § 1952. This definition certainly does not elucidate the elements of a violation of § 1952 itself.
Defendants stress that the legislative history of § 1952 demonstrates that the section can be applied only where organized crime and racketeering are involved. It is a common rule of statutory interpretation that legislative history not be used to interpret a statute that is clear and unambiguous on its face. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1916); Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). See also Sutherland, supra, § 4502; United States v. Great Northern Ry. Co., 343 U.S. 562, 72 S.Ct. 985, 96 L.Ed. 1142 (1952).
This canon of interpretation is particularly apposite where the legislative history is itself somewhat ambiguous. For example, defendants cite passages in the hearings that indicate that § 1952 was aimed at organized crime.1 On the other hand, the Ninth Circuit Court of Appeals has found that subsection (b) (2) sought to prevent and punish single criminal acts, not necessarily a continued course of conduct. Marshall v. United States, 355 F.2d 999, 1003 (9th Cir., 1966). Reconciliation of conflicting legislative history, however, is a latter stage of statutory interpretation, not the first step.
Defendants place great reliance on the Supreme Court's decision in Rewis v. United States, supra. The convictions in that case centered around an illegal lottery, or numbers operation, in northern Florida. There were essentially two groups of defendants: 1) a group of customers of...
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