United States v. Scalzitti, Crim. No. 74-276

• Decision Date: 26 February 1975
• Docket Number: 74-377.,Crim. No. 74-276
• Citation: 408 F. Supp. 1014
• Parties: UNITED STATES of America v. John Edward SCALZITTI et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

408 F. Supp. 1014

UNITED STATES of America v. John Edward SCALZITTI et al., Defendants.

Crim. Nos. 74-276, 74-377.

United States District Court, W. D. Pennsylvania.

February 26, 1975.

John W. Murtaugh Jr., Kenneth A. Bravo, Sp. Attys., U. S. Dept. of Justice, Pittsburgh, Pa., for plaintiff.

Donald D. Rossetti, Pittsburgh, Pa., Richard H. Galloway, Daniel J. Ackerman, Greensburg, Pa., Irving M. Green, New Kensington, Pa., Joseph M. Loughran, Charles H. Loughran, Greensburg, Pa., Thomas A. Livingston, Pittsburgh, Pa., for defendants.

OPINION

TEITELBAUM, District Judge.

This case is presently before the Court on four motions of defendants: 1) Defendant Fanell's motion to dismiss the indictment; 2) defendant Scalzitti's motion to remove a restraining order; 3) defendant Scalzitti's motion to quash the indictment; and 4) defendant Scalzitti's motion to dismiss the first and sixteenth counts of the indictment.

A hearing will be scheduled on defendant Fanell's motion. On January 14, 1974, Fanell, a subpoenaed witness, refused to answer questions put to him before a Western District of Pennsylvania grand jury, claiming a privilege against self-incrimination. That same day, I directed Fanell to testify by means of an Order under 18 U.S.C. Secs. 6002-6003 entered pursuant to a proper governmental request for immunity. Fanell did testify and subsequently was indicted for alleged violations of various federal criminal statutes. The government denies that the compelled testimony given by Fanell had any part in leading to the indictment at this number and according to the case of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), it now bears the burden of proving that the evidence it proposes to use against Fanell is derived from a source wholly independent of the compelled testimony.

By his first motion, Scalzitti contends that the Order entered September 25, 1974 pursuant to 18 U.S.C. Sec. 1963(b) restraining him from, inter alia, selling, transferring or otherwise disposing of the assets of Jon's Oldsmobile-Cadillac, Inc., other than in the ordinary course of business, is illegal and unconstitutional in that it allegedly deprives him of his property and "strips him of his presumption of innocence" without due process of law. The latter contention is clearly frivolous and without merit. Defendant is no more stripped of the presumption of innocence by this restraining order than would be the case were he required to post bond. His contention that he has been deprived of his property without due process is premature. Although the statute contains a provision for forfeiture of property upon conviction, the merits of such a question cannot be examined hypothetically. At the present time, the restraining order serves only to maintain the status quo and thus is neither illegal nor unconstitutional. Should the situation change and defendants desire to sell his business (which would be an intention contrary to the one expressed at arraignment) or should a bona fide offer to buy the business be forthcoming, such facts may be presented to the Court on petition. Defendants' motion to remove the restraining Order will be denied.

The motions to quash the indictment and dismiss counts one and sixteen of the indictment are directed toward the constitutionality of 18 U.S.C. Sec. 1962 and raise the issue of whether the statute is valid under a standard of vagueness. Defendant Scalzitti focuses particular attention on the "conduct of affairs" language of subsection (c) of the statute,¹ contending that insofar as no distinction is made between the illegal, but incidental or peripheral functions of an otherwise legitimate concern and an enterprise whose sole raison d'être is to serve as a front for racketeering activity, the statute must fail as being too indefinite. I have considered the relevant sections of the Organized Crime Control Act of 1970 called in question and find that I agree with the analysis set out in U. S. v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973) and U. S. v. Amato, 367 F.Supp. 547 (S.D.N.Y.1973). As stated in the Stofsky opinion:

It is contended that Section 1962(c) thus fails to set forth the degree and intensity of the relationship required between the racketeering activity in the usual operation of the enterprise, and that without such definition the prospective defendant cannot predict with any certainty the conduct sought to be made lawful. The constitutional requirement of definiteness in criminal statutes, they urge, would require the statute to state whether or not the alleged racketeering

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