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UNITED STATES v. AMATO

October 12, 1973

UNITED STATES of America
v.
Tommaso AMATO et al., Defendants


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MEMORANDUM

MacMAHON, District Judge.

 Defendants Mantell and Gittleman move to dismiss the indictment on various grounds. Gittleman adopts all the motions asserted by Mantell in addition to his own motions. Defendant Raia also adopts all motions made by Gittleman.

 The first of the four grounds asserted by Mantell and adopted by Gittleman and Raia is that 18 U.S.C. § 1962, a statute they are charged with violating, is unconstitutional. They claim that it is ambiguous and that it violates their right to due process by denying them a fair trial. We disagree.

 A motion similar to Mantell's was made in United States v. Parness, 73 Cr. 157, a case pending in this district. Judge Bonsal ruled that § 1962 is constitutional. Contrary to Mantell's contention, a defendant does not violate the statute merely by being "reputed to be an organized crime member." Rather, the crimes necessary to establish a pattern of racketeering under § 1962 must be proved beyond a reasonable doubt. The statute, therefore, does not deny due process.

 Moreover, the statute as applied, is not ambiguous because the target crimes of the conspiracy are specifically enumerated. This statute is similar to numerous others proscribing classes of activities affecting commerce without requiring proof that a particular transaction actually affects commerce. See, e.g., Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971) (Extortionate Credit Transaction Act), United States v. Becker, 334 F. Supp. 546 (S.D.N.Y. 1971), aff'd 461 F.2d 230 (2d Cir. 1972) (illegal gambling). The forfeiture provision of 18 U.S.C. § 1963, also challenged by this motion, is likewise constitutional. United States v. Parness, supra.

 Mantell also claims that count one of the indictment is duplicitous because it alleges violations of 18 U.S.C. § 1962 and of 18 U.S.C. § 371. Gittleman and Raia join in this motion.

 Section 371 is the general conspiracy statute. It provides that persons conspiring to commit any offense against the United States shall be subject to a $10,000 fine and/or five years in jail. Section 1962 makes it unlawful to invest the proceeds of racketeering in legitimate business, and § 1962(d) makes it unlawful for any person to conspire to violate any provisions of § 1962. The maximum penalty for violation of § 1962 is a $25,000 fine and/or twenty years in jail plus certain forfeitures. 18 U.S.C. § 1963.

 A count of an indictment is duplicitous when the count charges more than one separate and distinct offense. United States v. Lennon, 246 F.2d 24, 27 (2d Cir.), cert. denied, 355 U.S. 836, 78 S. Ct. 60, 2 L. Ed. 2d 48 (1957); Travis v. United States, 247 F.2d 130, 134 (10th Cir. 1957), rev'd on other grounds, 364 U.S. 631, 81 S. Ct. 358, 5 L. Ed. 2d 340 (1960); 8 J. Moore, Federal Practice P8.03[1] at 8-6 (2d ed. 1969). However, a count is not duplicitous when, as here, it charges a conspiracy under the general conspiracy statute (§ 371) as well as a conspiracy under a specific conspiracy statute (§ 1962). United States v. Galgano, 281 F.2d 908 (2d Cir. 1960), cert. denied, 366 U.S. 967, 81 S. Ct. 1916, 6 L. Ed. 2d 1253 (1961); 8 J. Moore, Federal Practice P8.03[2] at 8-10 (2d ed. 1969). Therefore, the motion to dismiss count one on the ground that it is duplicitous is denied.

 A guilty verdict on count one of the indictment, however, will not indicate whether the defendant has been convicted under the general or the specific conspiracy section. This creates serious sentencing problems. 8 J. Moore, Federal Practice P8.03[2] at 8-10 (2d ed. 1969). If count one is submitted to the jury as it now stands and the jury convicts, the court will be required to impose a sentence under the statute providing the least severe punishment. Brown v. United States, 112 U.S. App. D.C. 57, 299 F.2d 438, cert. denied sub nom. Thornton v. United States, 370 U.S. 946, 82 S. Ct. 1593, 8 L. Ed. 2d 812 (1962).

 Mantell, Gittleman and Raia also move to dismiss on the ground that the indictment is unconstitutionally vague and ambiguous. We cannot agree with this contention.

 Upon examination of the indictment, we find that it adequately advises the defendants of the charges they must meet. United States v. Smith, 232 F.2d 570 (3d Cir. 1956); United States v. Bonanno, 177 F. Supp. 106 (S.D.N.Y. 1959), rev'd on other grounds sub nom. United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960). Additionally, the indictment is sufficiently definite to support a plea of former jeopardy in subsequent cases. United States v. Silverman, 430 F.2d 106 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S. Ct. 1619, 29 L. Ed. 2d 123 (1971); United States v. Bonanno, supra. See also 8 J. Moore, Federal Practice P7.04 at 7-14 (2d ed. 1969). Accordingly, we hold that the indictment is not vague or ambiguous.

 Mantell, Gittleman and Raia also move for dismissal on the ground that the indictment fails to plead facts supporting the allegation that the defendants interfered with interstate commerce in violation of 18 U.S.C. § 2314. This claim borders on the frivolous. The indictment specifically alleges transactions which interfere with interstate commerce and which are in violation of the aforementioned section.

 Defendant Gittleman alone makes an additional motion. He claims that he has already been subjected to prosecution for the offenses alleged in counts one, two, three and four of the indictment and that, therefore, this prosecution is barred by the double jeopardy clause of the Fifth Amendment. He argues that a conspiracy prosecution in the United States District Court for the Central District of ...


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