US v. Paccione

• Decision Date: 30 April 1990
• Docket Number: No. SSS 89 Cr. 446 (CBM).,SSS 89 Cr. 446 (CBM).
• Parties: UNITED STATES of America, v. Angelo PACCIONE, Anthony Vulpis, John McDonald, A & A Land Development, W & W Properties, August Recycling, Inc., National Carting, Inc., Stage Carting, Inc., New York Environmental Contractors, Inc., Rosedale Carting, Inc., and Vulpis Brothers, Ltd., Defendants.
• Court: U.S. District Court — Southern District of New York

738 F. Supp. 691

UNITED STATES of America, v. Angelo PACCIONE, Anthony Vulpis, John McDonald, A & A Land Development, W & W Properties, August Recycling, Inc., National Carting, Inc., Stage Carting, Inc., New York Environmental Contractors, Inc., Rosedale Carting, Inc., and Vulpis Brothers, Ltd., Defendants.

No. SSS 89 Cr. 446 (CBM).

United States District Court, S.D. New York.

April 30, 1990.

COPYRIGHT MATERIAL OMITTED

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City by Elliot Peters, Deirdre Daly, and Kevin Ford, Asst. U.S. Attys., for the U.S.

Newman & Schwartz, New York City by Gustave Newman and Deborah Schwartz, for defendant Paccione.

Benjamin Brafman, P.C., New York City by Benjamin Brafman, for defendant Vulpis.

Robert Kasanof, New York City by Robert Kasanof and Edward Chikofsky, for defendant McDonald.

OPINION ON DEFENDANTS' MOTIONS TO DISMISS

MOTLEY, District Judge.

BACKGROUND

Indictment 89 Cr. 446 was filed on June 15, 1989. A superseding indictment adding Defendant McDonald was filed on August 24, 1989. The superseding indictment charges defendants with the following: substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. Sections 1962(c) and (d), through a "pattern of racketeering activity" and mail and wire fraud violations of 18 U.S.C. Section 1341. The RICO counts of that superseding indictment alleged twenty-two racketeering acts, including mail fraud on New York City and State government agencies, mail and wire fraud on CSX Transportation Inc. ("CSX") and mail fraud on doctors and medical care facilities. A superseding indictment removing, inter alia, Racketeering Acts 19-22, alleging acts of mail fraud on several doctors and a nursing home, was filed on February 6, 1990. A further superseding indictment, removing Racketeering Act 1(d) and the corresponding Count 6 — an alleged act of mail fraud against the City of New York — and adding two mailings to Racketeering Act 4, Acts 4(a) and (b) corresponding to new Counts 8 and 9 — alleging acts of mail fraud against CSX Realty, was filed on March 8, 1990.^*

Defendants have moved pursuant to Fed. R.Crim.P. 12 and 41 for the following:

1) dismissal of Counts One and Two of the indictment (the RICO counts) on the grounds that they are unconstitutionally vague;

2) dismissal of the RICO counts or striking of Racketeering Acts 1-2 and 5-22 on the grounds that environmental crimes are not authorized RICO predicate acts;

3) dismissal of Counts 3-8 of the indictment, alleging mail fraud against the City of New York on the grounds that they are based on insufficient evidence;

4) dismissal of Racketeering Acts 1-2 and 5-22 and Counts 3-8 of the indictment on the grounds that the conduct alleged does not constitute mail fraud;

5) dismissal of the RICO counts on the grounds that there is no separation alleged between the enterprise and the persons conducting the affairs of the enterprise;

6) dismissal of the RICO counts on the grounds that the indictment does not allege a proper enterprise;

7) severance of the trial of Angelo Paccione and Anthony Vulpis from John McDonald on the grounds that severance is required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and that their defenses will be antagonistic and mutually exclusive;

8) suppression of the evidence seized pursuant to the search warrants on the grounds that the warrants authorized a general search in violation of the Fourth Amendment's particularity clause;

9) suppression of evidence seized pursuant to allegedly warrantless searches.

Defendant John McDonald has also moved pursuant to Fed.R.Crim.P. 12(b)(3) for suppression of statements allegedly made by Defendant McDonald on or about July 19, 1989.

For the following reasons, these motions are denied.

ANALYSIS

1. The RICO Statute Is Not Unconstitutionally Vague

Defendants have moved to dismiss Counts One and Two of the indictment (the RICO substantive and conspiracy counts) on the ground that the RICO statute is unconstitutionally vague. Defendants assert that the terms "pattern of racketeering activity", "enterprise" and "association" with the enterprise are so vague as to provide little or no notice to any person of what conduct is prohibited and that the statute has provided neither content nor standard for determining what these terms mean, nor have the courts provided any meaningful limitation.

Relying extensively on dicta in Justice Scalia's concurring opinion in H.J., Inc. v. Northwestern Bell Telephone Co., ___ U.S. ___, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), defendants maintain that the terms "pattern of racketeering" activity, "enterprise," and "association" with the enterprise, are concepts so vague as to violate the notice to defendants requirement that the due process clause of the Fifth Amendment imposes on all federal criminal statutes. Defendants also complain that the vagueness of the statute's language, especially as to the meaning of "association" with the enterprise, is such as to give to the prosecutors impermissible discretion as applied to this case.

In H.J., Inc., the Court defined the term "pattern of racketeering" which requires proof by the prosecution of at least two predicate acts, as enumerated in the RICO statute, as consisting of two components: (1) relatedness and (2) continuity.

RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity. For analytic purposes these two constituents of RICO's pattern requirement must be stated separately, though in practice their proof will often overlap. The element of relatedness is the easier to define, for we may take guidance from a provision elsewhere in the Organized Crime Control Act of 1970 (OOCA), Pub.L. 91-452, 84 Stat. 922, of which RICO formed Title IX. OCCA included as Title X the Dangerous Special Offender Sentencing Act, 18 U.S.C. Section 3575 et seq. (now partially repealed). Title X provided for enhanced sentences where, among other things, the defendant had committed a prior felony as part of a pattern of criminal conduct. As we noted in Sedima v. Imrex Company, Inc., 473 U.S. 479, at 496, n. 14 105 S.Ct. 3275, 3285, n. 14, 87 L.Ed.2d 346, Congress defined Title X's pattern requirement solely in terms of the relationship of the defendant's criminal acts one to another: "criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." 18 U.S.C. Section 3575(e) ... RICO's legislative history tells us, however, that the relatedness of racketeering activities is not alone enough to satisfy Section 1962's pattern element. To establish a RICO pattern it must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity ... "Continuity" is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. See Barticheck v. Fidelity Union Bank/First National State, 832 F.2d 36, 39 (CA3 1987). It is, in either case, centrally a temporal concept—and particularly so in the RICO context, where what must be continuous, RICO's predicate acts or offenses, and the relationship these predicates must bear to one another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. See S.Rep. No. 91-617, at 158.

Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case. Without making any claim to cover the field of possibilities — preferring to deal with this issue in the context of concrete factual situations presented for decision — we offer some examples of how this element might be satisfied. A RICO pattern may surely be established if the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit. Suppose a hoodlum were to sell "insurance" to a neighborhood's storekeepers to cover them against breakage of their windows, telling his victims he would be reappearing each month to collect the "premium" that would continue their "coverage." Though the number of related predicates involved may be small and they may occur close together in time, the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future, and thus supply the requisite threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity's regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes. Such associations include, but extend well beyond, those traditionally grouped under the phrase "organized crime." The continuity requirement is likewise satisfied where it is shown that the predicates are a regular way of conducting defendant's ongoing legitimate business (in the sense that it is not a

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