The opinion of the court was delivered by: LASKER
Fred R. Field, Jr., whom the government alleges to be a General Organizer of the International Longshoremen's Association (ILA), is charged in a three count indictment with unlawfully demanding and receiving money from United Brands Company, an employer of longshoremen, from late 1968 through December, 1971. Count One alleges violations of the Organized Crime Control Act of 1970 (hereinafter the Act or the Statute), specifically 18 U.S.C. §§ 1961(4) and (5); 1962(c); Count Two alleges a single violation of 29 U.S.C. § 186(b); and Count Three alleges a conspiracy to commit the above offenses in violation of 18 U.S.C. § 371.
Field moves to dismiss Count One and that portion of Count Three which charges conspiracy to violate the Act, alleging various infirmities in the indictment and the Statute on which it is based.
I. Failure to Allege a Crime Under the Act
Under 18 U.S.C. § 1962(c) it is 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..."
"Racketeering activity" includes illegal payments and loans to labor organizations or their employees indictable under 29 U.S.C. § 186. 18 U.S.C. § 1961(1)(C). A "pattern of racketeering activity" requires at least two acts of racketeering activity within ten years of each other, one of which must have occurred after the effective date of the Statute. 18 U.S.C. § 1961(5).
Field argues that the indictment is defective because it fails to specify in what manner he is alleged to have conducted or participated in the conduct of the ILA's affairs through a pattern of racketeering activity, as distinct from simply engaging in corrupt activities on his own behalf. He claims that the statute is not aimed at individuals who merely happen to be union employees and who take advantage of their position for individual gain, but at unions whose activities are conducted in an illegal fashion. According to Field an indictment under the Statute must allege more than corrupt behavior on the part of a union official or employee; "it must [allege] that the union itself is corrupt." (Defendant's Memorandum at 4) While it is true that such allegations are missing from this indictment, Field's argument that an offense has therefore not been stated is unpersuasive.
The key phrase "to conduct or participate... in the conduct of [the] enterprise's affairs through a pattern of racketeering activity" is nowhere specifically defined. Indeed, the Act has been challenged as being unconstitutionally vague for this very reason. United States v. Scalzitti, 408 F. Supp. 1014 (W.D.Pa.1976); United States v. White, 386 F. Supp. 882 (E.D.Wis.1974); United States v. Stofsky, 409 F. Supp. 609 (S.D.N.Y.1973). In United States v. Stofsky, supra, the court considered the vagueness argument at length and concluded that the absence of explanatory language regarding the requisite nexus between the unlawful acts of an individual and union activities is not fatal for the simple reason that no particular degree of interrelationship is required. Judge Pierce stated:
"... § 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." 409 F. Supp. at 613.
Accord, United States v. Scalzitti, supra; United States v. White, supra.
This analysis, with which we agree, is dispositive of Field's contention. Section 1962(c) nowhere requires proof regarding the advancement of the union's affairs by the defendant's activities, or proof that the union itself is corrupt, or proof that the union authorized the defendant to do whatever acts form the basis for the charge. It requires only that the government establish that the defendant's acts ...