The opinion of the court was delivered by: SWEET
ROBERT W. SWEET, U.S.D.J.
Pretrial motions for severance, dismissal on the grounds of double jeopardy, and other relief were filed on behalf of certain of the defendants here and have been treated as having been made by all defendants similarly situated. Final submission and oral argument occurred on October 25, 1985. A review of the ninety-page indictment in light of these motions indicates that this action has been and promises to be a challenge for both prosecution and defense counsel, jurors and judiciary. Other than certain motions based on double jeopardy claims, the motions are denied except for certain relief with respect to the trial process which is granted, all of which is more fully set forth below.
The indictment joins the following twenty-five defendants for trial: Yin Poy Louie; Bing Far Yuen; Shiu Ping Wu; Robert Hu; Peter Chin; Wai Ho Tsang, Paul Wong "Bok Min Paul"; David Wong; Jimmy Hsueh; Peter Chan; Jackie Mooi; Lenny Chow; Danny Tom; George Tom; Frankie Mooi; William Chin; Paul Wong; Daniel Lee; Steven Yau; Robert Hsu; Torran Chang; Kwai Ming Chow; Perry Hoo; Pak Tse; and Bing Yie Chan. However, five of these defendants, Bing Far Yuen, Shiu Ping Wu, Robert Hu, Bok Min Paul and George Tom, are fugitives and, therefore, will not be tried unless apprehended before the scheduled March 3, 1986 trial date.
The principal focus of this prosecution lies in Count One of the indictment which charges all twenty-five defendants with violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), and Count Two which charges conspiracy to violate RICO, 18 U.S.C. § 1962(d). The indictment alleges that between 1971 and 1982 each of the defendants participated in and conspired to participate in an enterprise through a pattern of racketeering activity. The enterprise identified in the indictment is a group comprised of young men of Chinese origin known as the "Ghost Shadows." This street gang allegedly dominated over Mott Street in the Chinatown area of New York City by engaging in various acts of criminal activity set forth in the eighty-five acts of racketeering which are alleged in chronological order, acts which include obstruction of justice, extortion, management of gambling businesses, robbery, kidnapping and murder. These numerous "predicate" acts are alleged to relate to the enterprise because they furthered the two principal goals of the group: obtaining money illegally from local persons and protecting the territory in which these money raising activities occurred. Each defendant has been charged with at least two predicate acts; Pak Tse has been charged with three, the fewest number of acts, and Peter Chin is the individual charged with the greatest number of predicate acts which is twenty-four. Each defendant is charged with at least one act of racketeering involving conspiracy to murder.
While the acts of racketeering will be discussed in greater detail as required by the motions presented, the first two predicate acts are significant in that all twenty-five defendants are charged in Act of Racketeering One with a conspiracy to steal property by extortion and the theft of property by extortion from stores, businesses and restaurants from 1977 to 1982 [Par. 5(a), 5(b)]. All twenty-five defendants are also charged in Act of Racketeering Two with the conduct, management and supervision of illegal gambling houses operating on Mott Street in Manhattan between 1975 and 1982 [Par. 6]. The rest of the eighty-five acts of racketeering are then set forth in the remaining 89 paragraphs of Count I of the indictment. Count Two of the indictment charges all of the defendants with a racketeering conspiracy, that is, a conspiracy to conduct an enterprise through a pattern on racketeering between 1971 and 1982. 18 U.S.C. §§ 1961, 1962(d). Count Two relies upon each of the previously alleged eighty-five acts of racketeering to establish the pattern of racketeering.
Each of the ten remaining counts in the indictment reallege certain of the predicate acts as individual substantive offenses. Count Three charges David Wong and Peter Chan with conspiring to obstruct commerce by conspiring to rob the Cheung Yuen gambling house. 18 U.S.C. § 1951. Count Four charges the same two defendants with aiding and abetting the obstruction of commerce through the robbery of the Cheung Yuen gambling house. 18 U.S.C. §§ 2, 1951. Counts Five and Six charge the defendants Steven Yau and Kwai Ming Chow with, respectively, conspiracy to obstruct commerce by extortion and aiding and abetting such extortion from individuals at a store named the Ice Cream Factory. 18 U.S.C. §§ 2, 1951.
Counts Seven and Eight charge the same crimes of conspiracy and aiding and abetting the obstruction of commerce against defendants Danny Tom and Paul Wong, in connection with their attempted extortion of property from Wai Kang Leung. Count Nine charges Perry Hoo with aiding and abetting the obstruction of commerce through the robbery of individuals at a Hoinam Association. Finally, Counts Ten and Eleven charge Robert Hu with conspiring and aiding and abetting the obstruction of commerce through attempted extortion of individuals at the Four Seasons Health Spa. The last count, Count Twelve, alleges that Bing Far Yuen, Robert Hu, Peter Chin, Wai Ho Tsang and Jimmy Hsueh aided and abetted in an obstruction of justice in violation of 18 U.S.C. §§ 2, 1512.
II. Existance of a Single enterprise and Pattern of Racketeering Activity
Defendants' motion to dismiss the indictment for failure to allege properly the existence of an "enterprise" is denied. The indictment properly alleges the existence of an enterprise part from the racketeering acts themselves and charges each of the defendants as being a member of this organization.
To establish a violation or RICO, of course, the government must demonstrate that there existed an enterprise: "a group of persons associated together for a common purpose of engaging in a course of conduct" or "an ongoing organization, formal or informal." United States v. Turkette, 452 U.S. 576, 583 N.5, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1976). Such an organization need not be legitimate or otherwise recognized by law, for RICO is appropriately chargeable against persons who participate in an organization which is solely dedicated to committing unlawful activities. See Turkette, supra, 452 U.S. at 591.
The indictment properly charges the existence of a single enterprise, the Ghost Shadows street gang, which existed apart from any association of persons which existed for the mere purpose of committing a single criminal act. The indictment alleges that each of the defendants was either a leader, senior associate or junior associate in the gang and that the gang possessed a common purpose and provided services to its members. Certain of the predicate acts alleged, including extortion, robbery and attempted murder of members of competing gang, are alleged as support for the common purpose. Acts of Racketeering One and Two allege that all of the defendants engaged in the activities of the gang with respect to extortion and the management and operation of illegal gambling businesses. The indictment, therefore, properly alleges a single enterprise.
Defendants assert, however, that the various predicate acts alleged in the indictment lead irrevocably to the conclusion that the indictment cannot rationally be read as charging the existence of a single enterprise since several of the predicate acts charge that various defendants conspired or attempted to murder other defendants.
In this regard the indictment alleges in Acts of Racketeering Twenty, Twenty-One, Twenty-Two, Twenty-Three, and Twenty-Four, that in 1978, Peter Chin, Shiu Ping Wu, David Wong, Jimmy Hsueh, Robert Hsu, William Chin and George Tom either conspired, solicited or attempted to murder Yin Poy Louie.
By 1980, numerous alleged conspiracies and attempted murders took place involving defendants, both as perpetrators and as intended victims. At this time, according tot he government, Yin Poy Louie had been forced off Mott Street and had organized a group of loyal followers known as the "White Tigers" which apparently included co-defendants Peter Chan and David Wong. In Acts of Racketeering Forty-Nine, Fifty, Fifty-One, Fifty-Two, Fifty-Five, Fifty-Nine, Sixty-One, Sixty-Five, Seventy-Six and Seventy-Seven, Peter Chin, Jackie Mooi, George Tom, Frankie Mooi, William Chin, Steven Yau, Bok Min Paul, Paul Wong, George Tom, Danny Tom, Robert Hu, Wai Ho Tsang, Torran Chang, Bing Yie Chan, Bing Far Yuen, and Jimmy Hsueh are charged with conspiring, soliciting, or attempting to murder members of the White Tigers, including David Wong. On the other hand, Louis, Peter Chan and David Wong are accused in Acts of Racketeering Sixty, Seventy, and Seventy-Five with conspiring and attempting to murder Peter Chin and Robert Hu in 1980.
Another factional dispute appears to have arisen between co-defendants who apparently remained on Mott Street and allegedly participated together in attempted killings of the White Tiger fraction. In acts of Racketeering Sixty-Nine, Seventy-One, Seventy-Two, and Seventy-Four, Robert hu, Lenny Chow, Torran Chang, and Bing Yie Chan are accused of conspiring or attempting the murder of Peter Chin, Steven Yau or George Tom. The government, in its brief, explains these actions as retaliations directed by Robert Hu and his loyal followers against Peter Chin and his loyal followers for the earlier murder of Robert Hu's business associate which Hu believed was ordered by Peter Chin.
Whatever problems of proof are presented, these intra-defendant incidents do not require the dismissal of the RICO counts as a matter of law for failure to allege a single enterprise. The government contends that these acts represent power struggles between various senior leaders of the single enterprise to take control of the enterprise and that the proof at trial will establish that the enterprise continued with a sufficient continuity of purpose and personnel to constitute an entity under the RICO statute. See Errico, supra, 635 F.2d at 1550. Defendants, of course, assert that these incidents demonstrate the absence of any common goal by their very nature.
However, a proper RICO allegation does not require that each member agree with the actions taken by other members of the enterprise but only that they intended to "participate in the enterprise." 18 U.S.C. § 1962(c). Moreover, a person's withdrawal from an enterprise at one point in time should not foreclose a prosecution for his earlier activities when a member of the enterprise. Finally, these intra-defendant incidents cannot be said to be unrelated tot he enterprise as a matter of law. It is not necessary that a predicate act further the purpose for which the organization was founded but only that it be related to the enterprise either:
when (1) one is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise; or (2) the predicate offenses are related to the activities of that enterprise.
U.S.A. v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980). In the Scotto case, the defendant, a labor union official, was shown to have accepted illegal payments from union employees. The Court held that the acceptance of kickbacks was sufficiently related to the conduct of the enterprise, i.e., the labor union, to establish a RICO predicate act. Since, in this case, the alleged intra-defendant acts of violence may have been committed in order to enhance the position of the perpetrator within the enterprise, these acts are properly included in the indictment.
There will, of course, be included in the jury charge an appropriate instruction regarding the necessity of finding a relationship between each predicate act and the enterprise. The question for the jury, therefore, will be not only the action taken, but the motivation or intent underlying that criminal activity and the act's relationship to the enterprise. Of course, the mere fact that the intra-defendant acts may not have been successful is no reason to hold that the acts do not constitute predicate acts. Scott, supra, 641 F.2d at 54 (deemed unnecessary for a person to actually enhance his position in the enterprise through the predicate acts).
The defendants further contend that the indictment does not adequately allege a "pattern" of racketeering activity. Section 1961(5) defines a "pattern of racketeering activity" as at least two "acts of racketeering activity" within a ten-year period. The Second Circuit has not required that the predicate acts be related to each other in the sense of possession a "unitary character." United States v. Weisman, 624 F.2d 1118, 1122 (2d Cir. 1980).
However, it is possible that the dicta in a recent Supreme Court opinion constricts this Circuit's definition of a pattern. In United States v. Sedima, 437 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346, n.14 (1985), the Court quoted with approval from a Senate and House Report:
The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one "racketeering activity" and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern . . . Significantly, in defining pattern in the same bill, Congress was more enlightening: '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.'
Whatever change this statement will bring to RICO jurisprudence in this Circuit, the indictment, nevertheless, survives defendants' challenge. The indictment alleges a broad spectrum of illegal fund-raising acts and alleges territorial disputes between the Ghost Shadow enterprise and competing gangs. These acts on their face satisfy the most stringent requirement of "continuity and relationship."
Acts of Racketeering Thirteen, Twenty-Four, Twenty-Five, Sixty-Four, Sixty-Six, Sixty-Seven, Seventy-Three, Seventy-Five, and Eighty-One arise from transactions and activities which have previously been prosecuted in state courts, both in New York and Illinois. The defendants involved in these earlier prosecutions assert that a second prosecution on these charges violates the Double Jeopardy and Due Process Clauses of the Fifth Amendment.
Defendants' double jeopardy claims face several substantial difficulties. First, the constitutional protection against double jeopardy does not usually apply when the second prosecution is undertaken by a different sovereign.
Heath v. Alabama, 474 U.S. 82, 54 U.S.L.W. 4016, 88 L. Ed. 2d 387, 106 S. Ct. 433 (Dec. 3, 1985). Furthermore, the Supreme Court's decision in Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985), casts doubt on the applicability of ...