The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
The ten defendants named in the indictment moved for various relief prior to trial. Subsequent to oral argument one defendant died and another pled. By memorandum and order dated November 25, 1985 (familiarity with which is assumed) this court denied that part of the motion based on the Double Jeopardy clause.
The "Introduction" to the two count indictment alleges that two "crews" of the "Gambino Crime Family" plus their supervisor, defendant Aniello Dellacroce, now deceased, were "associated in fact" and constituted an "enterprise" within the meaning of the Racketeer Influenced Corrupt Organization Act (RICO), 18 U.S.C. § 1961(4). The Introduction describes the two crews as the Fatico/Gotti crew and the DiMaria/Corozzo crew, and asserts that the enterprise conducted its criminal activities by force and threats of force.
Count One alleges that in violation of 18 U.S.C. § 1962(d) defendants conspired to violate 18 U.S.C. § 1962(c). The latter section makes it unlawful for any person associated with an "enterprise" to conduct or participate in the conduct of its affairs through a pattern of racketeering activity or collection of unlawful debt. Count Two alleges a violation of 18 U.S.C. § 1962(c) and sets forth fifteen predicate acts constituting the pattern of racketeering activity.
Defendants urge that the indictment does not plead a single "enterprise" within the meaning of 18 U.S.C. §§ 1961 and 1962. They say that according to the indictment the two crews were distinct from one another, committed different types of crimes at wholly different times, and operated independently without a common purpose, and that this is not enough to make out an "enterprise."
The pleading of an "enterprise" is sufficient. The indictment describes the "enterprise" as made up of persons "associated in fact," namely, the two crews and their supervisor, comprising a "segment" of the Gambino Crime Family and alleges that this Crime Family supervised and participated in illegal activities generating money and other economic advantage. The indictment does not specifically repeat that the "enterprise" had this purpose. But, even if the law requires the pleading to state the purpose of the enterprise, the allegations are adequate. They plainly contemplate that the enterprise, that is, the "segment" of the Gambino Crime Family had the same objective as the larger entity.
The statute does not require an "enterprise" made up of individuals "associated in fact" to have the identical associates throughout its existence. Provided those charged are associated in fact at the times alleged, they constitute an "enterprise," 18 U.S.C. § 1961(4), which does not cease to exist when some leave or others join.
Defendants contend that the indictment does not properly allege a "pattern of racketeering activity" within the meaning of 18 U.S.C. §§ 1961 and 1962. They say that the fifteen acts of racketeering are sporadic and unrelated criminal episodes over a lengthy period and thus do not show persons engaged in a course of conduct for a common purpose. No doubt the government must prove at trial that the racketeering acts were done in the conduct of the affairs of the enterprise. Count Two so alleges, and no more is required.
The statute does not provide that the acts be similar in kind. United States v. Weisman, 624 F.2d 1118, 1122 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980). The only time requirements as to racketeering acts are set forth in 18 U.S.C. § 1961(5).
Defendants ask the court to dismiss Count Two because they claim that the paragraphs charging racketeering acts 6, 7, 13, 14, and 15 each allege more than one crime. In the alternative the defendants urge the court to strike the "duplicitous" language.
The allegations charging act 7 set forth only one crime. Under 18 U.S.C. § 1955 the state law violation is an element of the federal crime.
The other paragraphs referred to charge two crimes; paragraphs 6, 14, and 15 allege both a conspiracy to commit a substantive crime and the substantive crime; paragraph 13 alleges the possession of both contraband and stolen cigarettes.
There is no reason to dismiss the count or strike the allegations. The court will instruct the jury that it may not find guilt based on one of the acts charged in the alternative unless the jurors all agree on at least one alternative.
Defendants contend that the allegations of racketeering acts 6 and 10, charging conspiracy to murder, are defective because they do not allege overt acts in furtherance of the conspiracies. Defendants point out that section 105.20 of the applicable New York Penal Law conditions convictions for conspiracy on the pleading and proof of an overt act.
The defendants' argument is inconsistent with the language in United States v. Bagaric, 706 F.2d 42, 62-63 (2d cert. denied, 464 U.S. 840, 104 S. Ct. 133, 78 L. Ed. 2d 128 (1983). Even if proof of an overt act is required, the RICO statute does not incorporate state rules of pleading.
Defendants argue that Count One, the conspiracy count, is defective because it does not allege an overt act, and that 18 U.S.C. § 1962(d) is unconstitutional if it does not require proof of such an act.
That section does not require proof of a: overt act. United States v. Ivic, 700 F.2d 51, 59 (2d Cir. 1983).
The act of conspiring is an act. The case of Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), finding in violation of the Eighth Amendment a statute making criminal the addiction to drugs is hardly comparable. The prosecution of defendants in Count One is not for what they are but for what they allegedly did, namely, conspire to commit illegal acts.
Nor does Count One charge, in alleged violation of the First Amendment, simply an agreement to advocate or to assemble to advocate crimes. Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), is thus not pertinent. The charge is that defendants conspired to do something against the law, that is, to participate in the conduct of an enterprise through a pattern of racketeering activity.
Defendants, citing Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977), contend that the two counts in the indictment merge and that the court should dismiss one.
The Jeffers case discussed whether 21 U.S.C. § 846, making a narcotics conspiracy illegal, was a lesser included offense in a prosecution for a continuing narcotics criminal enterprise under 21 U.S.C. § 848. The latter section provides in subsection (b) that a person is engaged in such an enterprise if, among other things, he commits a federal felony drug offense that is part of a series of such violations undertaken by him "in concert with" five or more others whom he supervises. The Supreme Court assumed for the sake of argument that the words "in concert" require an "agreement" and thus treated § 848 as requiring proof of every fact necessary to show a violation of § 846.
In contrast 18 U.S.C. § 1962 contemplates that a conspiracy to participate in the conduct of the affairs of the "enterprise" through a pattern of racketeering activity is not the same thing as being part of the enterprise. An enterprise may consist of a single individual. However, the defendants contend that because the indictment alleges that the individuals who are "associated in fact" and comprise the "enterprise" consist of the two crews and their supervisor (encompassing all the defendants), the "conspiracy" here is the same as the "association," and that one count merges into the other.
The statute presupposes that an "enterprise" composed of individuals "associated in fact" is not inevitably composed only of those who conduct and participate in the conduct of its affairs through a pattern of racketeering activity or collection of unlawful debt. An "enterprise" consisting of persons "associated in fact" may engage in some legitimate affairs or even have a laudable goal. The statute does not define the element of association in such an enterprise to require that each member agree to conduct the affairs of the association through a pattern of racketeering activity or collection of unlawful debt.
An unincorporated association may have many members and a perfectly proper purpose, while a few of its members in pursuit of that purpose engage in a pattern of racketeering activity or conspire to do so. Only those who do so violate 18 U.S.C. § 1962(c) or (d). Perhaps the same evidence will justify a finding of the existence both of an enterprise and of an illegal conspiracy charged. But the elements of the "association" and the "conspiracy" are not identical. Under the reasoning of Iannelli v. United States, 420 U.S. 770, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975), the counts do not merge.
Defendants assert that Count Two improperly alleges conspiracies as predicate acts. The case of United States v. Ruggiero, 726 F.2d 913, 918-19 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984), forecloses this argument.
Defendants ask the court to dismiss the charges contained in seven of the racketeering acts asserted in Count Two on the ground that they are "stale." They urge that to require defendants to answer charges as to acts committed between November 1967 and April 1974 would be to violate due process.
By 18 U.S.C. § 1961(5) a pattern of racketeering activity requires at least two acts of such activity, the last act of which occurred within ten years after the commission of the prior act. The acts alleged meet the statutory standard, and ...