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UNITED STATES v. STOFSKY

December 21, 1973

UNITED STATES of America
v.
George STOFSKY and Charles Hoff et al., Defendants. UNITED STATES of America v. George STOFSKY and Al Gold et al., Defendants



The opinion of the court was delivered by: PIERCE

MEMORANDUM AND ORDER

 PIERCE, District Judge.

 Seven officials and employees of the Furriers Joint Council, a union representing workers in New York's fur garment manufacturing industry, have been variously charged in two separate indictments with, among other things, violations of the provisions of the Organized Crime Control Act of 1970, directed at racketeer influenced and corrupt organizations, 18 U.S.C. § 1961 et seq.

 Defendants have joined *fn1" in an omnibus pre-trial motion seeking dismissal of various counts of each indictment, and for particulars and discovery, and for a government investigation with respect to possible wire-tapping and government-sponsored burglary. This memorandum and order will deal with most of defendants' motions.

 The structure of each indictment is essentially the same, although a somewhat different set of defendants is named in each. *fn2" The foundation for each indictment is the section of the Organized Crime Control Act which provides that:

 
"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c).

 "Racketeering activity" is defined in 18 U.S.C. § 1961(1)(A)-(D) as:

 
"(A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year;
 
(B) any act which is indictable under any of the following provisions of title 18, United States Code . . . section 1951 (relating to interference with commerce, robbery, or extortion) . . . .
 
(C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions of payments and loans to labor organizations) or . . .
 
(D). . ."

 "Pattern of racketeering activity" is defined in 18 U.S.C. § 1961(5). It requires

 
"at least two acts of racketeering activity, one of which occurred after the effective date of this chapter (October 15, 1970) and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; . . ."

 Each indictment, in a series of substantive counts, charges independent federal crimes. These substantive crimes, which are also "racketeering activities" as defined in § 1961(1)(B) or (C), are then incorporated as predicate offenses in yet another substantive count in each indictment charging that certain of the defendants named therein conducted or participated in the affairs of the union through a pattern of racketeering activity, as proscribed in § 1962(c) (hereinafter "the racketeering offense").

 Indictment 73 Cr. 614 names defendants Stofsky, Hoff, Gold and Lageoles and is premised, in the main, upon alleged substantive violations of the Taft-Hartley Law, 29 U.S.C. § 186(b), which prohibits acceptance of certain payments by union officers and agents from employers. In 21 counts (2-22) it charges that on 21 different occasions between January 1967 and September 1971, certain of those defendants unlawfully accepted payments from certain union-shop manufacturers in return for permitting these manufacturers to sub-contract fur manufacturing work out to non-union shops in contravention of the collective bargaining agreement between the union-shops and the union. Count 23 of the indictment incorporates as predicate offenses 15 of the alleged independent violations of the Taft-Hartley Act and charges a racketeering, offenses in violation of 18 U.S.C. § 1962(c) against defendants Stofsky and Gold. Count 1 charges all four of the defendants with conspiracy to violate both the Taft-Hartley Law and the racketeering statute. In addition, the indictment includes, in Count 24, a charge of obstruction of justice, 18 U.S.C. § 1503, against defendants Stofsky and Gold. And finally, the indictment includes six counts of income tax evasion, 26 U.S.C. § 7201, two against defendant Stofsky, two against defendant Hoff and two against defendant Gold.

 Indictment 73 Cr. 615 names defendants Stofsky, Gold, Apostolides, Lageoles, Logios and Ziebal and is based, in the main, upon alleged violations of the Hobbs Act, 18 U.S.C. § 1951, which prohibits extortion in interference with interstate commerce. In 12 counts (3-15) it charges that on 12 different occasions in January of 1972, certain of the defendants threatened certain non-union shop fur manufacturers with injury to persons and property if these manufacturers did not cease soliciting sub-contracts from the union-shop manufacturers. Count 2 of the indictment incorporates as predicates the 12 independent acts alleged in Counts 3-15, and charges a racketeering offense against each of the defendants named in the indictment. Count 1 charges all six defendants with a conspiracy to violate both the Hobbs Act and the racketeering statute.

 A. MOTIONS TO DISMISS

 Pursuant to Fed.R.Crim.P. 12, defendants have moved to dismiss various counts of each indictment on a variety of grounds.

 1. Constitutionality of 18 U.S.C. § 1962(c).

 Defendants assert that while the definitional section of the Organized Crime Control Act of 1970, 18 U.S.C. § 1961, adequately defines "person," "enterprise," "racketeering activity," and "pattern of racketeering activity," it never defines the phrase, "conduct or participate . . . in the conduct of such enterprise's affairs through a pattern of racketeering activity . . ." as used in § 1962(c). It is contended that § 1962(c) thus fails to set forth the degree and intensity of the relationship required between the racketeering activity and 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 unlawful. The constitutional requirement of definiteness in criminal statutes, they urge, would require the statute to state whether or not the alleged racketeering activity "must be in furtherance of the enterprise; or if it need be merely not harmful to the enterprise, or even contrary to the goals of the enterprise" . . . or whether it "must be a vital and constant part of the operation of the enterprise or if it need be only random and barely related to the usual operation of the enterprise."

 In this Court's view, the statute is clear enough. The elements of the predicate offenses are well-defined and established. It would be futile for a person to argue that he had no warning or knowledge that his commission of such acts would violate the law. Thus, the only serious question is whether § 1962(c) gives him adequate warning that the commission of more than one such criminal act under certain circumstances constitutes an additional, separate crime for which there is a separate penalty. With respect to this aspect, the statutory scheme of § 1962(c) is not unlike that of 21 U.S.C. § 848 which proscribes "a continuing criminal enterprise" in drug trafficking. That statute also creates a separate offense based on the commission of predicate crimes under certain defined circumstances. Neither statute contains a requirement of scienter independent or in addition to that necessary to prove the predicate crimes. It was characterized as a business regulatory statute and upheld against a vagueness attack in United States v. Manfredi, 488 F.2d 588, 2d Cir. 1973, with the Court of Appeals relying in part on Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110, 115 (1972), where the Court said, "[In] the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed." If this language is applicable to 21 U.S.C. § 848, where the purpose of Congress is to eradicate totally illicit enterprises, it would seem all the more applicable to 18 U.S.C. § 1962 where the congressional purpose is to eradicate criminal means of acquiring, maintaining and conducting any enterprise affecting commerce.

 Given the leeway of a regulatory statute (and even without such leeway), § 1962(c) sufficiently places men of reasonable intelligence on notice that persons employed by the type of enterprise therein defined cannot resort to a pattern of specified criminal acts in the conduct of the affairs of that enterprise. Set forth, then, on the face of the statute is a necessary connection between the person who would commit the enumerated predicate acts and the enterprise, and between the acts and that person's participation in the operations of the enterprise.

 It is true that the statute does not define this connection by distinguishing between predicate acts which play a major or a minor role, or any role at all, in what might be seen as the usual operations of the enterprise; nor does it require that such acts be in furtherance of the enterprise, as defendants suggest it must.

 In this Court's view, the statute fails to state these requirements because Congress did not intend to require them in these terms. The perversion of legitimate business may take many forms. The goals of the enterprise may themselves be perverted. Or the legitimate goals may be continued as a front for unrelated criminal activity. Or the criminal activity may be pursued by some persons in direct conflict with the legitimate goals, pursued by others. Or the criminal activity may, indeed, be utilized to further otherwise legitimate goals. No good reason suggests itself as to why Congress should want to cover some, but not all of these forms; nor is there any good reason why this Court should construe the statute to do so. It plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what the enterprise was or was not about at the time in question. This may be broad, but it is not vague.

 The government has suggested that the relationships set forth in the statute are best characterized as requiring:

 
a. that the defendant committed two or more of the underlying criminal offenses;
 
b. that those offenses were committed in the course of his employment by the enterprise in question;
 
c. that those offenses were connected with each other by some common scheme, plan or motive so as to constitute a pattern and not simply a series of disconnected acts.

 To the extent that the government's emphasis is on objective factors of employment status and commission of the predicate acts, this Court accepts the first two suggested elements as accurately stating the relationships set forth on the face of the statute. The third suggested element is to be found no where in the statute itself, either in § 1961(5) where "pattern . . ." is ...


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