United States v. Yonan

• Decision Date: 02 December 1985
• Docket Number: No. 84 CR 246.,84 CR 246.
• Citation: 623 F. Supp. 881
• Parties: UNITED STATES of America, Plaintiff, v. Cyrus YONAN, Jr., Defendant.
• Court: U.S. District Court — Northern District of Illinois

623 F. Supp. 881

UNITED STATES of America, Plaintiff, v. Cyrus YONAN, Jr., Defendant.

No. 84 CR 246.

United States District Court, N.D. Illinois, E.D.

December 2, 1985.

Anton R. Valukas, U.S. Atty., Michele E. Smith, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Edward M. Genson, Thomas A. Corfman, Genson & Steinback, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On November 27, 1985 the United States Attorney obtained from the grand jury its fifth essay — the fourth superseding indictment (simply the "Indictment," except where it is necessary to distinguish the current version from prior versions)—at leveling multiple charges against Cyrus Yonan, Jr. ("Yonan"). This latest return to the drawing board was directed at correcting obvious drafting errors in the third superseding indictment,¹ which had itself made one important substantive change from the second superseding indictment, the version dealt with in this Court's November 15, 1985 memorandum opinion and order (the "Opinion," 622 F.Supp. 721).

For the same reasons discussed in the Opinion, id. at 722-26, Indictment Count Two (identical to Count One of the second superseding indictment) is dismissed. Indictment Count Three (identical to Count Two of the second superseding indictment) survives under the analysis in the Opinion, id. at 727-28. Mail fraud Indictment Counts Four through Eleven also stand, for the reasons stated in the Opinion, id. at 729-34 in dealing with corresponding Counts Three through Ten of the second superseding indictment.

That leaves for fresh consideration only Indictment Count One, which reflects a wholly new theory² for Yonan's conviction under 18 U.S.C. § 1962(c), one of the provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968.³ According to new Count One ¶ 3(b), the RICO "enterprise" (see Section 1961(4)) was the Office of the Cook County State's Attorney (the "State's Attorney's Office"). Count One ¶ 5 charges Yonan with the same acts of bribery referred to in the Opinion, 622 F.Supp. at 728, all involving payments and offers of payment to Terrence Hake ("Hake")—an Assistant State's Attorney whom Yonan believed to be corrupt but who turned out to be an undercover agent—to fix criminal cases involving Yonan's clients. As Count One ¶ 3(c) would have it, that renders Yonan "associated with" the State's Attorney's Office enterprise—a necessary ingredient of any charge under Section 1962(c).

It is by now familiar lore that proper pleading of a Section 1962(c) charge requires the allegation that a "person" conducted or participated in the affairs of an "enterprise," each of the quotation-marked terms being an entity distinct from the other. Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 400-02 (7th Cir.1984) (citing with approval this Court's decision in Parnes v. Heinold Commodities, Inc., 548 F.Supp. 20, 23-24 (N.D.Ill.1982)), aff'd per curiam, ___ U.S. ___, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). Further, Section 1962(c) in terms attaches criminal responsibility only to a person "employed by or associated with" an enterprise.

Yonan (the "person") was obviously not "employed by" the State's Attorney's Office (the charged "enterprise"). Thus he must perforce have been "associated with" that office if Count One is to stand. Unfortunately, RICO's definitional Section 1961 does not prescribe the content of "associated with," nor is the legislative history very helpful. But a few basic propositions will serve to put Yonan's situation in proper perspective.

RICO's very sentence structure and normal use of the English language demonstrate that "associated with" is a concept wholly distinct from "conducting or participating, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity."⁴ In that respect United States v. Forsythe, 560 F.2d 1127, 1136 (3d Cir.1977), on which the government relies in part, simply misreads the statute. In RICO terms the phrase "associated with," like "employed by," defines a status relationship between the person and the enterprise. Acts of "racketeering" by the "person," though the rest of Section 1962(c) says they must have an effect on the conduct of the enterprise's affairs, do not themselves provide the status nexus between the racketeer and the enterprise. United States v. Bledsoe, 674 F.2d 647, 663 (8th Cir.1982). Were it otherwise, robbing a bank twice would cause the robber to be "associated with" the bank. Just as the enterprise itself must amount to more than a sheer pattern of racketeering activity, United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981) ("enterprise" is "proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit"), one does not "associate with" an enterprise by committing crimes against it.

In part, Congress' use of the term "associated with" (and not simply the term "employed by") shows an intention to permit criminal charges against persons outside the organizational structure of an enterprise as well as within it.⁵United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Bright, 630 F.2d 804, 830 (5th Cir.1980) (citing Elliott); United States v. Lee Stoller Enterprises, 652 F.2d 1313, 1320-21 (7th Cir.1980) (en banc) (citing Bright), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 615 (1981). But that does not answer what quality of "association" is required to permit the outside person to be swept into the criminal net.

RICO, it should be remembered, is directed against the acquisition and conduct of "enterprises" through specified types of criminal behavior by persons directly linked to those enterprises. Sections 1962(a) and (b) address the acquisition of interests in, and the maintenance of, enterprises through racketeering (Section 1962(b)) or through funds obtained from racketeering (Section 1962(a)). Section 1962(c) addresses the conduct of enterprises through racketeering activity by specified categories of persons.⁶ Thus a prime instance of the sort of non-employee target Congress aimed at through RICO is the control of a corporate enterprise's activities by a majority shareholder—a "person" who is not necessarily an employee but who is clearly "associated with" the enterprise.⁷

Subcontractors, accountants, lawyers and consultants all may be "associated with" an enterprise, see Schacht v. Brown, 711 F.2d 1343, 1360 (7th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983) though they are not its employees.⁸ And as n. 5 illustrates, if the enterprise is simply what Section 1961(4) calls "any union or group of individuals associated in fact although not a legal entity," logic as well as normal language usage tells us each of those individuals is ordinarily "associated with" the enterprise (whether or not its employee). Membership in a union or a club is an example, as well as membership in a criminal organization of the sort described in Turkette.

Whether inside or outside the enterprise's organizational structure, all of the "associates" given above as examples share two characteristics:

1. All have a relationship with the enterprise characterized by a stake or interest in the goals of the enterprise— legitimate or illegitimate.

2. All are associated with the enterprise as such, not merely with some other individual who is "employed by or associated with" the enterprise but is off on a frolic and detour of his or her own.

Both those characteristics are in a sense tautological. But that is due in large part to their obviousness. And given the government's myopia on this score, it is necessary to state them in that form to show exactly why Yonan's connections with Hake did not associate Yonan with the State's Attorney's Office.

There is a sharp distinction between the Yonan-Hake association and the situations that have been held to present "associated with" relationships in the cases the government has cited. In Bright, for example, Bright operated a bail bond agency involved in bribing the county sheriff. Bright was held a person "associated with" the enterprise of the County Sheriff's Office, 630 F.2d at 830. In like fashion, the sheriff's bagman and payoff collectors in his corrupt scheme were held "associated with" the enterprise, id. at 831-34. Of course the goals of a county sheriff's office are not supposed to be corruption of justice. But the involvement of the head of the office—the sheriff himself—as bribe-taker made his goals those of his own office qua "enterprise." Thus Bright shared the purpose of the charged enterprise, though Bright's own purpose (and that of the entrepreneur himself, the sheriff) was to subvert the goal the enterprise should have had. And because Bright and his co-defendants worked for the man who directed and set the policy of the enterprise, they were related to the enterprise as a whole, at the management level.

Yonan's case is critically different. Here the State's Attorney's Office itself is not alleged to have been corrupt or to have had a corrupt goal. Quite to the contrary, Yonan's goal was to undermine the Office's— the enterprise's—actual legitimate goals. Hake had (that is, pretended to have) a corrupt goal, but that was his own goal and not his employer's. Nor was Hake a policy-maker of the State's Attorney's Office as "enterprise." His own (feigned) corruption is not alleged to have infected anyone else. So Yonan was not associated through Hake with anyone but Hake.

Forsythe and Lee Stoller Enterprises are analytically identical to Bright. In each case the goal of the enterprise identified in the indictment—in Forsythe a bail bond agency and in Lee Stoller Enterprises a county sheriff's office—was corrupt, though in a perfect...