United States v. Thevis, Crim. A. No. Cr. 78-180A.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtBobby Lee Cook, Cook & Palmour, Summerville, Ga., for Thevis
Citation474 F. Supp. 134
PartiesThe UNITED STATES of America v. Michael G. THEVIS, Global Industries, Inc., Fidelity Equipment Leasing Corp., William Ross Mahar, Anna Jeanette Evans and Alton Bart Hood.
Decision Date07 August 1979
Docket NumberCrim. A. No. Cr. 78-180A.

474 F. Supp. 134

The UNITED STATES of America
v.
Michael G. THEVIS, Global Industries, Inc., Fidelity Equipment Leasing Corp., William Ross Mahar, Anna Jeanette Evans and Alton Bart Hood.

Crim. A. No. Cr. 78-180A.

United States District Court, N. D. Georgia, Atlanta Division.

August 7, 1979.


474 F. Supp. 135
COPYRIGHT MATERIAL OMITTED
474 F. Supp. 136
William L. Harper, U. S. Atty., Dorothy Y. Kirkley, Craig A. Gillen, Asst. U. S. Attys., Atlanta, Ga., for plaintiff

Bobby Lee Cook, Cook & Palmour, Summerville, Ga., for Thevis.

Edward T. M. Garland, Garland, Kadish & Nuckolls, Atlanta, Ga., for Global and Fidelity.

Austin E. Catts, Atlanta, Ga., for Evans.

Dean Grindle, Jr., Atlanta, Ga., for Hood.

ORDER

HAROLD L. MURPHY, District Judge.

Defendant Michael G. Thevis has moved to dismiss Counts I and II of the indictment. All defendants have adopted his motion. In support of the motion, the defendant advances four arguments: (1) the counts must be dismissed for failure to state a claim; (2) the counts are based on a statute which is unconstitutional both facially and as applied; (3) paragraphs six and seven which seek forfeiture must be dismissed as an unconstitutional application of 18 U.S.C. § 1963; and (4) the forfeiture provisions of 18 U.S.C. § 1963 are unconstitutional. The Court will analyze each argument separately.

Counts I and II allege that the defendants were members of an enterprise which conducted its affairs through a pattern of

474 F. Supp. 137
racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq. Count I charges a substantive violation of the act, 18 U.S.C. § 1962(c), while Count II alleges a conspiracy to violate RICO, conduct proscribed by 18 U.S.C. § 1962(d)

I.

The defendant's first attack is strategic: he urges that the enterprise alleged in the indictment is not included in the statutory definition of that term, 18 U.S.C. § 1961(4) and, thus, he concludes that Counts I and II must fall for failure to charge a violation of RICO. See, United States v. Mandel, 415 F.Supp. 997 (D.Md.1976). In support of this conclusion, the defendant argues that the statutory language, Congressional intent, and traditional canons of statutory construction all support the defense contention. While the government acknowledges that the enterprise set forth in the indictment is not specifically included in the statutory definition, it is the prosecution's contention that the definitional verb "includes" as used in the statutory definition is neither exhaustive nor inclusive, but a term of enlargement. Furthermore, the government urges in support of its position the Congressional directive that RICO "shall be liberally construed to effectuate its remedial purpose. . . ." Pub.L. No. 91-452, § 904, 84 Stat. 947 (1970).

The enterprise alleged in the indictment is "a group of individuals associated in fact with various corporations to operate a pornography business through certain unlawful means. . . ." Indictment, ¶ 1(e), p. 3.1 The statutory definition of 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." 18 U.S.C. § 1961(4). Since the statute does not specifically embrace an enterprise composed of "a group of individuals associated in fact with various corporations," the defendant concludes that both Counts I and II must be dismissed since there is no violation of 18 U.S.C. § 1962 if the enterprise which conducts its affairs through a pattern of racketeering activity is not the "enterprise" defined in 18 U.S.C. § 1961(4).

The challenge mounted by the defendants is a question of first impression. Although the RICO enterprise concept has withstood a variety of different attacks,2 those thrusts have generally been limited to the question of whether the RICO enterprise embraced licit as opposed to illicit organizations, see, United States v. McLaurin, 557 F.2d 1064 (5th Cir. 1977), formal as opposed to informal organizations, United States v. Elliot, supra, or governmental as opposed to nongovernmental organizations. Compare, United States v. Frumento, 563 F.2d 1083 (3rd Cir. 1977), cert. denied sub nomine Millhouse v. United States, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978); United States v. Brown, supra with United States v. Mandel, supra.

In answering this new question, this Court is convinced that the RICO enterprise is broad enough to embrace an enterprise defined as a "group of individuals associated in fact with various corporations." In reaching this conclusion, the Court has relied, as has the defendant, on the language

474 F. Supp. 138
of the statute itself, the Congressional intent, and the traditional canons of statutory construction

The starting point for analysis of the question presented must be the statute in question, 18 U.S.C. § 1961(4). At the onset, it must be recognized that the definition is neither exhaustive or inclusive, for had Congress intended to strictly limit the forms of potential RICO enterprises, it would have employed the definitional verb "means." See, Helvering v. Morgan's Inc., 293 U.S. 121, 125 n. 1, 55 S.Ct. 60, 79 L.Ed. 232 (1934). As the Supreme Court noted in that opinion, "`includes' imports a general class, some of whose particular instances are those specified in the definition." Helvering v. Morgan's Inc., supra at 125 n. 1, 55 S.Ct. at 62 (1934). That Congress recognized those definitional distinctions is illustrated by the statute itself. Compare, 18 U.S.C. § 1961(1) ("racketeering activity means . . .") with 18 U.S.C. § 1961(4) ("enterprise includes . . .").

While the outer limits of the RICO enterprise may be obscure, this Court is convinced that the enterprise alleged in the indictment is within the general class set forth in the statutory definition.

The indictment states that the enterprise was "a group of individuals associated in fact with various corporations." Under the statutory definition, the enterprise could be an individual, Atkinson, "Racketeer Influenced and Corrupt Organizations," 18 U.S.C. §§ 1961-68: Broadest of the Federal Criminal Statutes, 69 J.Crim.L.C. 1 (1978), a group of individuals, United States v. Elliot, supra, or a corporation, see, United States v. Dennis, 458 F.Supp. 197 (E.D.Mo.1978). The defendant urges, however, that the enterprise could not be a de facto combination of individuals and corporations: though under the statute, each of the integral parts of this larger enterprise would qualify as an enterprise standing alone.

This narrow view of the defendants overlooks the inclusion of the term "association" within the general class by which enterprise is defined. Association is "the act of a number of persons in uniting together for some special purpose . . . for good or ill." Black's Law Dictionary, p. 156 (4th Ed.). The indictment alleges that the enterprise was "a group of individuals associated in fact with various corporations," and this combination of individuals and corporations is an association formed, the indictment alleges, for the particular purpose of operating a pornography business through certain unlawful means.

While it cannot be doubted that the enterprise concept of 18 U.S.C. § 1961(4) has limits, it is not necessary to define those limits in this case, since the Court determines that the alleged combination of individuals associated in fact with various corporations is an association and, thus, an enterprise under 18 U.S.C. § 1961(4).3

While this Court is concerned over the inherent conflict between RICO's liberal construction clause and the traditional canon that ambiguities in criminal statutes are to be strictly construed, see, United States v. Mandel, supra at 1022, it is not necessary to address that conflict at this junction.4

474 F. Supp. 139

Since membership alone in an enterprise as defined by 18 U.S.C. § 1961(4) is not proscribed criminal activity, there is no due process requirement that the enterprise be strictly construed, and as already observed, the Congress has directed that RICO shall be liberally construed in accordance with its remedial purpose, and that purpose was "to seek the eradication of organized crime in the United States by strengthening the legal tools . . .." Pub.L. 91-452, § 1, 84 Stat. 923. As the Fifth Circuit Court of Appeals noted in United States v. Levy, 579 F.2d 1332, 1337 (5th Cir. 1978), "a criminal statute should be fairly construed in accordance with the legislative purpose behind its enactment. See, e. g. United States v. Turley, 352 U.S. 407 77 S.Ct. 397, 1 L.Ed.2d 430 (1957)." Thus, in construing this act and effectuating this purpose, the Fifth Circuit has given the RICO enterprise "a very broad meaning." United States v. Elliot, supra at 897.5

II.

The defendant's second argument is that 18 U.S.C. § 1962 is void for vagueness.

18 U.S.C. § 1962(c) provides, in part, that: "it shall be unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." (emphasis added). The defendant contends that the italicized portions of the aforementioned statute are impermissibly vague, see, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and that Counts I and II must be dismissed as a result.6

Facially, the phrase "employed by or associated by an enterprise" is not unconstitutionally vague, United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976); nor is the language "to conduct or participate, directly or indirectly, in the conduct of enterprise's affairs." United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff'd 527 F.2d 237 (2d Cir. 1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975); United States v. Field, 432 F.Supp. 55 (S.D. N.Y.1977), aff...

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33 practice notes
  • U.S. v. Anderson, Nos. 79-1809
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 12 September 1980
    ...the generally accepted view that the goal of statutory interpretation is to divine the intent of Congress. In United States v. Thevis, 474 F.Supp. 134, 138 (N.D.Ga.1979), the court listed "Congressional intent" as merely one factor to be relied upon in construing a statute and sta......
  • U.S. v. Cauble, No. 82-2087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 31 May 1983
    ...as stock holdings or real property ownership and interests affording influence on or control over enterprise); United States v. Thevis, 474 F.Supp. 134, 143 (N.D.Ga.1979) (assuming forfeitability of "capital interest in a partnership"), aff'd, 665 F.2d 616 (5th Cir.), cert. denied......
  • U.S. v. Martino, No. 78-3611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 2 August 1982
    ...a pattern of racketeering activity. I continue to be of that view and also find persuasive the discussion in United States v. Thevis, 474 F.Supp. 134 (N.D.Ga.1979) and United States v. Meyers, 432 F.Supp. 456 The majority concludes that "reading an enterprise limitation into § 1963(a) ......
  • US v. Saccoccia, Crim. A. No. 91-115-T.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 4 June 1993
    ...interest in those entities. 7 See United States v. Marubeni American Corp., 611 F.2d 763 (9th Cir.1980); United States v. Thevis, 474 F.Supp. 134 (N.D.Ga.1979), aff'd on other grounds, 665 F.2d 616 (5th Cir.1982); United States v. Meyers, 432 F.Supp. 456 (W.D.Pa. 8 Kenneth Saccoccio was con......
  • Request a trial to view additional results
33 cases
  • U.S. v. Anderson, Nos. 79-1809
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 12 September 1980
    ...the generally accepted view that the goal of statutory interpretation is to divine the intent of Congress. In United States v. Thevis, 474 F.Supp. 134, 138 (N.D.Ga.1979), the court listed "Congressional intent" as merely one factor to be relied upon in construing a statute and stated while ......
  • U.S. v. Cauble, No. 82-2087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 31 May 1983
    ...as stock holdings or real property ownership and interests affording influence on or control over enterprise); United States v. Thevis, 474 F.Supp. 134, 143 (N.D.Ga.1979) (assuming forfeitability of "capital interest in a partnership"), aff'd, 665 F.2d 616 (5th Cir.), cert. denied, --- U.S.......
  • U.S. v. Martino, No. 78-3611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 2 August 1982
    ...a pattern of racketeering activity. I continue to be of that view and also find persuasive the discussion in United States v. Thevis, 474 F.Supp. 134 (N.D.Ga.1979) and United States v. Meyers, 432 F.Supp. 456 The majority concludes that "reading an enterprise limitation into § 1963(a) (1) r......
  • US v. Saccoccia, Crim. A. No. 91-115-T.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 4 June 1993
    ...interest in those entities. 7 See United States v. Marubeni American Corp., 611 F.2d 763 (9th Cir.1980); United States v. Thevis, 474 F.Supp. 134 (N.D.Ga.1979), aff'd on other grounds, 665 F.2d 616 (5th Cir.1982); United States v. Meyers, 432 F.Supp. 456 (W.D.Pa. 8 Kenneth Saccoccio was con......
  • Request a trial to view additional results

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