The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
This is a civil action brought by the United States of America under the Racketeer-Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. "RICO"). As filed, the complaint sets forth 47 claims for relief against 112 defendants who are alleged to have committed 486 acts of racketeering through 46 separate enterprises. In a transparent endeavor to lay claim to "the largest civil RICO case ever,"
the government attorneys who drafted this complaint have multiplied defendants, enterprises, and predicate acts as though numbers were ends in themselves; and, yet, unfortunately, those draftsmen have also attempted to present the elements of their claims in the most summary form. The result -- in derogation of the spirit of Federal Rule of Civil Procedure 8(a) -- is a complaint that is neither "short" nor "plain." Indeed, at all too many points, the result is a complaint as to which persons "of common intelligence must necessarily guess at its meaning." Confronted with this obscure pleading, most of the defendants have moved to dismiss the complaint; for the reasons indicated below, their motions are granted in part and denied in part.
The facts that underlie this transaction are, for the purposes of this motion, assumed to be true as set out in the complaint. The government alleges that, for several decades, the solid waste disposal industry in the New York counties of Nassau and Suffolk has been "infiltrated, controlled, influenced, corrupted and run by organized crime." Complaint P1. The complaint states that the Lucchese Organized Crime Family of La Cosa Nostra and the Gambino Organized Crime Family of La Cosa Nostra have been the principal sources of such Mafia influence.
Id. According to the government, this "control of the industry by organized crime has eliminated competition and [has] cost the residents and [the] businesses of those counties millions of dollars." Id. Furthermore, the presence and the influence of the Mafia "has been accomplished through the use of threats and violence, through the infiltration and [the] control of labor unions, and through the bribery and [the] corruption of local government officials and employees." Id. Finally, "members and associates of organized crime families were and are directors, officers, employees and . . . shareholders of various carting companies" that do business in Nassau County and in Suffolk County. Id. P5.
The government alleges that the carting business on Long Island is conducted through an "illegal customer allocation agreement." Id. P7. No member of this cartel "seeks or accepts business from customers [allocated to] another carter who is a member of the cartel." Id. Additionally, the members of this cartel "rig" bids on public carting contracts. Id. P8. This "agreement among the carting companies and their principals is enforced by members and associates of organized crime families, and any attempt by rebel carters [that is, non-cartel carters] to compete for existing customers or [to] submit competitive bids is met with immediate threats of violence . . . or [of] economic harm." Id. P9. In order to facilitate their illegal control of the carting industry, the cartel members corrupt public officials whose duties include the oversight of various aspects of the industry. Id. P15. And, in return for the power and the influence of the organized crime families, the members of the cartel "make periodic payments in cash" to the Lucchese Family and to the Gambino Family. Id. P13. Over time, the government contends, these activities have virtually eliminated "all competition from the [carting] industry . . . [and have made it] impossible for any non-corrupt businesses to enter the industry and [to] compete for work. The consumer, in turn, [has been] forced to pay inflated prices for garbage disposal services." Id. P14.
The defendants in this action include the Private Sanitation Industry Association of Nassau/Suffolk, Inc. ("PSIA") -- "a trade association of individuals and entities engaged in the business of solid waste collection, transportation, . . . or disposal," id. P23 -- and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Private Sanitation Local 813 ("Local 813") -- the union that represents workers employed by companies engaged in the solid waste industry on Long Island. The complaint also names as defendants the following 44 corporate entities (all of which are alleged to participate in the solid waste disposal industry on Long Island): A-1 Carting Corporation ("A-1 Carting"); AA&M Carting Company ("AA&M Carting"); Ace Garbage & Rubbish Removal, Inc. ("Ace Garbage"); All Weather Carting Corporation ("All Weather Carting");
Associated Waste Disposal Company, Inc. ("Associated Waste"); B&D Carting, Inc. ("B&D Carting"); Bonsera, Inc. d/b/a Star Carting corp. ("Star Carting"); Budget Roll-Off Systems, Inc. ("Budget Roll-Off"); C&C Refuse Carting Corporation ("C&C Carting"); Ciano and Sons Carting Co., Inc. ("Ciano Carting"); Comet Carting Company ("Comet Carting"); Daniel Finley Allen & Co., Inc. ("Daniel Allen Carting"); Delta Carting Company ("Delta Carting"); Dependable Sanitation Corp. ("Dependable Sanitation"); Detail Carting Corporation ("Detail Carting"); Enviro Carting Company d/b/a Island Carting Company ("Enviro Carting"); Ever Ready Sanitation Corporation ("Ever Ready Sanitation"); Harbor Carting Corporation ("Harbor Carting"); Hickey's Carting, Inc. ("Hickey's Carting"); Hillside Carting Company ("Hillside Carting"); Jamaica Ash & Rubbish Removal Company ("Jamaica Ash"); Long Island Rubbish Removal Corporation ("Long Island Rubbish"); Maggio's M&P Carting Services, Inc. ("Maggio's Carting");MCM Sanitation, Inc. ("MCM Sanitation); Metro Waste, Inc. ("Metro Waste"); Mets Roll-Off Service, Inc. ("Mets Roll-Off"); Monbro Sanitation Service, Inc. ("Monbro Sanitation"); Prudential Waste Disposal, Inc. ("Prudential Waste"); Sail Carting & Recycling Corporation ("Sail Carting"); Salem Sanitary Carting Corporation ("Salem Carting"); South Side Carting Co., Inc. ("South Side Carting"); SSC Corporation; Standard Commercial Cartage, Inc. ("Standard Cartage"); Sun Carting, Inc. ("Sun Carting"); Sunset Sanitation Corporation ("Sunset Sanitation"); Superior Waste Systems, Inc. ("Superior Waste"); TWA Carting Corporation ("TWA Carting"); II Cousins Carting Corp. ("II Cousins Carting"); U-Need-A-Roll-Off Corporation ("U-Need Corp."); Unique Sanitation Corp. ("Unique Sanitation"); Vigliotti Brothers Carting Corporation ("Vigliotti Carting"); Vinnie Monte's Waste Systems, Inc. ("Vinnie Monte's Waste"); V&J Rubbish Removal, Inc. ("V&J Rubbish"); and Wayside Carting, Inc. ("Wayside Carting").
Finally, the complaint names as defendants the following 64 individuals: Michael Acquafredda (a principal of AA&M Carting); Bernard Adelstein (an officer of Local 813); John Allen (a principal of Daniel Allen Carting); Sarah Allen (a principal of Daniel Allen Carting); James Allesandria (a principal of V&J Rubbish); Vito Aniello (a principal of Dependable Sanitation); Salvatore Avellino, Jr. (a principal of Salem Carting and of SSC Corporation); Joseph Bonsera (a principal of Star Carting); Michael Bonsera (a principal of Star Carting); Charles Cannizzaro (a principal of MCM Sanitation and of Enviro Carting); Richard Carey (a former employee of the town of Islip, New York); Pasquale Casagrande (a principal of Hillside Carting);
Richard Ciano (a principal of Ciano Carting); Raniero Colatosti (a principal of Harbor Carting); Craig Comerford (a former employee of the town of Oyster Bay, New York); Antonio Corallo;
James J. Corrigan, Jr. (an executive director of PSIA); Edward DeMatteo (a principal of Sail Carting); Ernest DeMatteo (a principal of Sail Carting); Emedio Fazzini (a principal of Jamaica Ash); Joseph Ferrante (a principal of U-Need Corp. and of Unique Sanitation); Nicholas Ferrante (a principal of U-Need Corp. and of Unique Sanitation); John Guglielmo (a principal of II Cousins Carting); John Haynes (a principal of Standard Cartage); Dennis Hickey (a principal of Hickey's Carting); Robert Husak (a principal of B&D Carting); Jerome Kowalski (a former employee of the town of Oyster Bay, New York);
Vincent Maggio (a principal of Maggio's Carting); Michael Malena (a principal of Salem Sanitary and of SSC Corporation); John Maratea (a principal of Comet Carting); Peter Marcello (a principal of Metro Waste and of Mets Roll-Off); Anthony Miello (a principal of Enviro Carting and of MCM Sanitation); Anthony Montesano (a principal of Associated Waste and of Monbro Sanitation); Vincent Montesano (a principal of of Vinnie Monte's Waste); Anthony Natale (a principal of Dependable Sanitation); Frank Notarantonio (a principal of All Weather Carting); John Pagano (a principal of Ace Garbage); Frank Palopoli (a principal of Sunset Sanitation); Salvatore Palopoli (a principal of Budget Roll-Off and of Superior Waste);David Pamlanye (a former employee of the town of Islip, New York); Ralph Pantony (a principal of Delta Carting); Joseph Petrizzo (a principal of Ace Garbage, of Metro Waste, of Mets Roll-Off, and of TWA Carting); Joseph Pezza (a principal of A-1 Carting); Pasquale Pezza (a principal of A-1 Carting); Peter Reali (a principal of Hillside Carting); Robert Renna (a principal of Prudential Waste and of TWA Carting); Arthur Romersa (a former official of the Huntington Department of Environmental Control in the town of Huntington, New York); Thomas Ronga (a principal of Detail Carting); Franco Rotundo (a principal of Wayside Carting); Salvatore Santoro;
Robert Schuman (a principal of Standard Cartage); John Senia (a former employee of the town of Islip, New York); Pat Sesti; Peter Stramiello (a former employee of the town of Oyster Bay, New York);
Glenn Thweatt (a principal of C&C Carting); Orlando Velocci (a principal of South Side Carting); Anthony Vespucci; Allen Vesting (a former employee of Hickey's Carting); Arnold Vigliotti (a principal of Vigliotti Carting); Glen Vilchek (a principal of Sun Carting); Joseph Vittorio (a former employee of the town of Oyster Bay, New York);
Michael Walstrum (a former employee of the town of Islip, New York); and James Winters (a principal of Ever Ready Sanitation).
Almost all the defendants have moved to dismiss the complaint;
some have moved also for summary judgment or for sanctions.
Many of these motions present similar or identical grounds for dismissal, and many of the defendants have expressly sought leave of the court to join in the motions of their codefendants. For the convenience of all parties, then, the court will -- to the extent applicable -- consider a motion made on behalf of one to be a motion made on behalf of all. The principal grounds on which the complaint is attacked are that the government has failed to plead essential elements of its causes of action, that the complaint does not provide adequate notice to the defendants of the claims against them, and that the relief sought by the government is inappropriate under the governing substantive law. Other bases on which the defendants seek dismissal of the complaint include the untimeliness with which it was filed, the bar of double jeopardy, claim and issue preclusion, state sovereignty, divestment of subject matter jurisdiction by federal labor law, and the unconstitutionality of the RICO statute.
I. GENERAL CONSIDERATIONS
The Federal Rules of Civil Procedure do not require a claimant to set out in detail all the facts upon which he bases his claim . . . . Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.
Conley, 355 U.S. at 47-48. See also Wade v. Johnson Controls, Inc., 693 F.2d 19, 21 (2d Cir. 1982) (under Rule 8(a), complaint "need not state 'facts' or 'ultimate facts' or 'facts sufficient to constitute a cause of action'").
Thus, contrary to the argument of many of the defendants in this action, the exceptional mandate of Federal Rule of Civil Procedure 9(b) that allegations of fraud and of mistake be pleaded with particularity is inapplicable to RICO actions that do not involve claims of fraud. United States v. Bonanno Organized Crime Family of La Cosa Nostra, 683 F. Supp. 1411, 1428 (E.D.N.Y. 1988), aff'd on other grounds, 879 F.2d 20 (2d Cir. 1989). Nevertheless:
[The] notice pleading requirements of [Rule 8(a)] are applicable to RICO, and "it is imperative that the court and the defendants be placed on clear notice as to what is being alleged, and what the substance of the claim is, in order to facilitate a decision on the merits of the case."
Id. (emphasis added) (quoting Ralston v. Capper, 569 F. Supp. 1575, 1581 (E.D. Mich. 1983)). Failure to comply with Rule 8(a) -- that is, failure to place a defendant and the court on adequate notice of the plaintiff's claim -- generates a basis for dismissing the complaint. Id.
Similarly, Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." This provision is "a lineal descendent of the common law general demurrer." Wright & Miller, Federal Practice and Procedure: Civil 2d § 1355. On a motion under Rule 12(b)(6), "the complaint is construed in the light most favorable to the plaintiff," id. at § 1357; or, as Judge Friendly remarked, the complaint is read "with great generosity," Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 558 (2d Cir. 1985). Although the court "need not assume [the truth of] conclusory statements as to legal effects or conclusions, deductions, or opinions as to factual allegations." Bonanno, 683 F. Supp. at 1428 (citing Wright & Miller at Section 1357), "a court is required to accept the material facts alleged in the complaint as true. . . ." Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, -- U.S. -- (1992). As such, a motion under 12(b) (6) "cannot present any question of fact; rather, [it] presents only the question of whether or not the complaint has set forth a legally cognizable claim." Roundtree v. City of New York, 778 F. Supp. 614, 617 (E.D.N.Y. 1991). Hence, a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.
II. THE SUBSTANTIVE RICO CLAIMS
The complaint alleges forty-four claims for relief under the substantive RICO provision of 18 U.S.C. § 1962(c). The first claim for relief alleges that certain defendants
are employed by or are associated with PSIA, a RICO enterprise, and that these defendants have conducted or have participated in the conduct of the affairs of PSIA through a pattern of racketeering activity. Complaint PP200-04. The second claim for relief alleges that certain defendants
are employed by or are associated with the "Carting Industry Enterprise", a RICO enterprise, and that these defendants have conducted or have participated in the conduct of the affairs of the carting industry enterprise through a pattern of racketeering activity. Id. PP205-09. The third claim for relief alleges that the defendants Bernard Adelstein, Salvatore Avellino, Jr., Antonio Corallo, Joseph Petrizzo, and Salvatore Santoro are employed by or are associated with Local 813, a RICO enterprise, and that these defendants have conducted or have participated in the conduct of the affairs of Local 813 through a pattern of racketeering activity. Id. PP210-14. The fourth through the forty-fourth claims for relief allege that certain individual defendants
are employed by or are associated with at least one of forty-one different corporations
-- each corporation constituting a separate RICO enterprise -- and that these defendants have conducted or have participated in the conduct of the affairs of the corporations by which they are employed or with which they are associated through separate patterns of racketeering activity. Id. PP215-20. Furthermore, the defendant PSIA is alleged to have conducted or to have participated in the conduct of the affairs of each of the corporate enterprises through a pattern of racketeering activity. Id.
The defendants argue that each of these claims must be dismissed insofar as each fails to state a claim on which relief may be granted. More specifically, the defendants argue that, in each of these first forty-four claims for relief, the government has failed to allege adequately all the elements required by Section 1962(c) for a substantive RICO claim. That section provides in its entirety:
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.
A violation of this provision, then, occurs when a "person" engages in the "(1) conduct (2) of an enterprise [by which the person is employed or with which he is associated] (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985) (footnote omitted). Or, as the Second Circuit has parsed the relevant text:
Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied, 465 U.S. 1025, 104 S. Ct. 1280, 79 L. Ed. 2d 684 (1984).
Further, a plaintiff "must, of course, allege each of these elements to state a claim. " Sedima, 473 U.S. at 496. Failure to allege an element of a substantive RICO violation as to any one cause of action requires dismissal of that part of the complaint. See, e.g., Albany Insurance Co. v. Esses, 831 F.2d 41, 44 (2d Cir. 1987) (complaint dismissed for failure to plead "enterprise" adequately). It is necessary, then, for the court to examine each of these first forty-four claims for relief under Section 1962(c) in order to determine whether the government has properly pleaded each of the required elements.
Section 1962(c) provides that a defendant is not liable for a substantive RICO violation unless he is "employed by" or is "associated with" an "enterprise" (the affairs of which implicate interstate or foreign commerce). Section 1961(4) of Title 18 of the United States Code provides that:
"Enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.
Under this provision -- which includes both corporations and unions as "enterprises" -- it is immediately apparent that the government has adequately alleged the "enterprise" element for the first, third, and fourth through forty-fourth claims for relief. As to the first claim for relief, PSIA is alleged to be "an association . . . existing and operating for the purpose of controlling the solid waste disposal industry on Long Island . . . " Complaint P132. The court notes further that PSIA is alleged to be an incorporated entity, P23; as such, it is plainly an "enterprise" under Section 1961(4). As to the third claim for relief, Local 813 is alleged to be a "union . . . existing and operated for the purpose of, inter alia, taking part in the control of the solid waste disposal industry on Long Island . . . " Id. P135. Again, under the plain meaning of Section 1961(4), the government has properly alleged the enterprise element for this claim. See Bonanno, 683 F. Supp. at 1424 (labor union may constitute RICO enterprise). Next, as to the fourth through the forty-fourth claims for relief, thirty-nine of the corporate defendants
as well as two non-defendant corporations
are each alleged to constitute "a corporation organized, existing and operating for the purpose of enabling the defendant officers, directors, employees, shareholders and operators of the corporation . . . to take part in the control of the solid waste disposal industry on Long Island . . . " Complaint P134. For each of these claims, then, the government has adequately pleaded the requisite enterprise.
As to the second claim for relief, the required enterprise element is also properly pleaded; however, the adequacy of that part of the pleading is slightly less obvious in that the enterprise pleaded there is not (as with those listed above) a "legal entity." Rather, for the second claim, the enterprise is alleged to be "a group composed of, but not limited to" all the named defendants "associated in fact for the purpose of controlling the waste disposal industry on Long Island . . . " Id. P133. As a matter of pleading, this allegation is adequate to assert that the carting industry enterprise is indeed an "enterprise" for purposes of RICO. See United States v. Turkette, 452 U.S. 576, 583, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981) (RICO "enterprise" is "group of persons associated together for a common purpose of engaging in a course of conduct"); see also Procter & Gamble v. Big Apple Industrial Buildings, Inc., 879 F.2d 10, 15 (2d Cir. 1989) (same), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990); Beauford v. Helmsley, 865 F.2d 1386, 1391 (2d Cir.) (en banc) ("all . . . defendants in association with one another [for common purpose]" may constitute RICO enterprise), vacated and remanded for further consideration in light of H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 106 L. Ed. 2d 195, 109 S. Ct. 2893, original decision adhered to, 893 F.2d 1433 (2d Cir.), cert. denied, 493 U.S. 992, 110 S. Ct. 539, 107 L. Ed. 2d 537 (1989).
At least one defendant has argued that the government has not adequately pleaded that this carting industry enterprise exists as an association independent of a pattern of racketeering activity; accordingly, the defendant argues, the complaint must be dismissed under Procter & Gamble, 879 F.2d at 15 ("When facing a RICO count in . . . a complaint, a district court must determine whether it independently alleges both an enterprise . . . and a pattern of racketeering activity . . . ") (emphasis added). See Memorandum of Enviro Carting at 33-34. This distinction between the elements of enterprise and of pattern was recognized as fundamental by the Supreme Court in Turkette, 452 U.S. at 583:
While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The "enterprise" is not the "pattern of racketeering activity"; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.
At this point, however, the government has indeed adequately alleged the independent element of enterprise for this count; further, it does not appear "beyond doubt that the [government] can prove no set of facts in support" of that allegation. Hence, whether or not the government will be able to demonstrate that the carting industry enterprise is such an association that exists independently of any pattern of racketeering activity is a matter that must await either the production of proof at trial or at least the probing test of a timely motion for summary judgment.
Many defendants have argued, as a collateral matter, that the complaint improperly alleges that certain "persons" (as used in Section 1962(c)) are also "enterprises" (as used in that same section). See, e.g., Memorandum of AA&M Carting at 20-21. The principle to which these defendants allude is that "the RICO 'person' engaged in the proscribed conduct . . . and the 'enterprise' must be different from one another, i.e. they must be separate entities." Jacobson v. Cooper, 882 F.2d 717, 719 (2d Cir. 1989). It is certainly true that many of the RICO enterprises in the complaint are also alleged to be defendants. However, the relevant inquiry is not whether an entity named as a RICO enterprise in one count of the complaint may be named as a RICO person in another count; rather, the test is whether an entity named as an enterprise is also named as a person that conducted the affairs of itself (as an enterprise) through a pattern of racketeering activity. As stated in Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315 (2d Cir. 1985), cert. denied, 474 U.S. 1058, 88 L. Ed. 2d 776, 106 S. Ct. 800 (1986): An "entity may not be simultaneously the 'enterprise' and the 'person' who conducts the affairs of the enterprise through a pattern of racketeering activity" (emphasis added). Although the government refers to this as "complete" identity, Memorandum of Government at 141, it is perhaps more accurate to refer to the prohibited allegation as one of "simultaneous" identity. In any event, the complaint at no point alleges that a defendant is simultaneously a person and the enterprise through which that person acts. Thus, for example, the defendant A-1 Carting is a person that allegedly acts through the PSIA and the carting industry enterprises (first and second claims for relief); and A-1 Carting is also alleged to be an enterprise through which other persons (the defendants PSIA, Joseph Pezza, and Pasquale Pezza) allegedly act (fourth claim for relief). Hence, the superficial identity of defendants as both persons and enterprises does not vitiate the otherwise adequately pleaded enterprise elements of the first forty-four claims for relief.
Finally, as noted above, each of these RICO enterprises is alleged to be an enterprise "engaged in, or the activities of which affect, interstate or foreign commerce." See Complaint P201 (PSIA enterprise), P206 (carting industry enterprise), P211 (Local 813 enterprise), and P216 (the corporate enterprises). As such, the government has properly pleaded under Section 1962(c) the required element of enterprise -- as well as the jurisdictional requirement of "interstate or foreign commerce" with respect to those pleaded enterprises.
B. Pattern of Racketeering Activity
Section 1962(c) further provides that a defendant incurs RICO liability only if he "conducts or participates, directly or indirectly, in the conduct of [a RICO]enterprise's affairs through a pattern of racketeering activity" or through the collection of unlawful debt. At this point, a threshold observation must be made about United States v. Minicone, 960 F.2d 1099 (2d Cir. 1992), cert. denied, -- U.S. --, 112 S. Ct. 1511, 117 L. Ed. 2d 648 (1992). There, the Second Circuit stated that"proof of a RICO violation pursuant to § 1962(c) requires a showing that an 'enterprise' engaged in a 'pattern' of racketeering activity." Minicone, 960 F.2d at 1106. This statement is almost certainly an inadvertence: Section 1962(c) declares it illegal for a person -- not for an enterprise -- to engage in a pattern of racketeering activity. As previously stated by the Second Circuit in United States v. Persico, 832 F.2d 705 (2d Cir. 1987), cert. denied, 486 U.S. 1022, 108 S. Ct. 1995, 100 L. Ed. 2d 227 (1988):
The focus of section 1962(c) is on the individual patterns of racketeering engaged in by a defendant, rather than the collective activities of the members of the enterprise, which are proscribed by [the RICO conspiracy statute of] section 1962(d).
Persico, 832 F.2d at 714 (emphasis added). To the extent that Minicone thus suggests that a RICO claim requires proof of only one pattern of racketeering activity by the RICO enterprise rather than of separate patterns by each named defendant, the case is inconsistent both with the text of Section 1962(c) and with established RICO case law. Accordingly, this observation in Minicone, believed to be an inadvertence, will be disregarded.
In this case, the forty-four substantive RICO counts of the complaint allege that the defendants did conduct or did participate in the conduct of the affairs of the various RICO enterprises through patterns of racketeering activity (but not through the collection of unlawful debt). As to the meaning of this element, 18 U.S.C. § 1961(5) provides that:
"Pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.
This provision sets forth at least two minimal components of the "pattern of racketeering activity" element of Section 1962(c): First, a defendant must have committed "at least two" acts of racketeering activity; and, second, the defendant must have committed those acts within a certain period of time. The Supreme Court, however, has had occasion to observe that Section 1961(5) requires more than these two sub-elements in order to establish a pattern of racketeering activity. Sedima, 473 U.S. at 496 n.14. The Court has even had occasion to attempt to articulate precisely what "more" is required. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). In this case, the defendants raise no dispute about the adequacy of the complaint with respect to the time frame set out in Section 1961(5); however, they vigorously contest the legal sufficiency both of the acts alleged to be acts of racketeering and of the patterns those acts are alleged to constitute. It is necessary, then, for this court to review both the individual racketeering acts that are alleged and also the pleading of "pattern" with respect to those acts.
Section 1961(1) of Title 18 of the United States Code provides in relevant part that "racketeering activity" means:
(A) any act or threat involving . . . arson, robbery, bribery, [or] extortion . . . 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) [and] section  2312 . . . (relating to interstate transportation of stolen motor vehicles). . . .
That is, "racketeering activity" is any act that is chargeable and punishable under certain state law felony classifications or indictable under specific federal criminal provisions. Any act that does not fall within the purview of Section 1961(1) is not an act of racketeering activity.
The complaint collects as one unit the first 195 alleged racketeering acts. Essentially, these acts concern five alleged attempts by thirty-nine of the defendants to prevent successful competition by certain rebel carters, Jerry and Robert Kubecka, with the carting cartel. Those five acts involved compelling the Kubeckas to surrender certain garbage stops in Nassau County and in Suffolk County to certain defendants, to refrain from bidding on a public disposal contract, to take part in a bid-rigging scheme, to surrender garbage stops at the Cold Spring Harbor School District, and not to solicit certain garbage disposal contracts. Complaint P139. Thirty-three of the defendants
are alleged to have committed these acts, to have conspired to commit these acts, or to have attempted to commit these acts, id. P138; six of the defendants
are alleged to have aided and abetted these acts, id. P140.
Notwithstanding that there are only five transactions that underlie this part of the complaint, the government has multiplied each of the five transactions by the thirty-nine defendants to arrive at the total of 195 acts of racketeering. Hence, rather than simply name thirty-nine defendants five times over a sum of five acts of racketeering, the government has expanded these five events into the impressive count of 195 racketeering acts. However, the complaint unfortunately fails to correlate any one defendant to any one racketeering act: It merely provides a list of the thirty-three principal defendants, id. P138, a list of the five acts against the Kubeckas, id. P139, and a list of the six aiding-and-abetting defendants, id. P140. It is only by guesswork that one is able to match any numbered racketeering act with any particular defendant or with any particular event involving the Kubeckas.
The lack of clarity as to which defendants are alleged to have engaged in particular acts plagues almost every page of the complaint. This problem would by itself have certainly required dismissal of many of the alleged racketeering acts under Rule 8(a) simply for failure to put each defendant on notice as to the claim against him. However, in response to a directive from this court, the government has submitted a 70-page supplementary document to cure those defects (the "complaint supplement" or the "supplement"), and this court will treat that supplement as a "more definite statement" under Federal Rule of Civil Procedure 12(e). This supplement indicates precisely what predicate act each defendant is alleged to have committed or to have aided and abetted. See, e.g., Supplement at 1-2 (listing six specific predicate acts alleged to have been committed by defendant Local 813) and at 29-30 (listing five specific predicate acts alleged to have been aided and abetted by defendant Bernard Adelstein). Thus, however onerous it may be for the parties and for the court to have to integrate the 132-page complaint and the 70-page supplement in order to determine that which the complaint alone should have made clear, the court finds that this newer document satisfies Rule 8(a) with respect to providing notice to each defendant of the particular racketeering acts he is alleged to have committed.
As indicated, the first 195 alleged acts of racketeering concern five alleged incidents directed at certain rebel carters. In order to plead that these acts are instances of "racketeering activity" as defined in Section 1961(5), the government states that:
[The defendants named in these 195 acts] did knowingly, willfully and intentionally commit acts chargeable under state law at the time of their commission as Coercion in the First Degree and Attempted Coercion in the First Degree, New York Penal Law, Sections 20.00, 110.05 and 135.65, which acts are punishable by imprisonment for more than one year, as set forth in Title 18, United States Code, Section 1961(1)(A), and did knowingly, willfully and intentionally commit acts, attempt to commit acts, or conspire to commit acts which are indictable under Title 18, United States Code, Sections 1951 and 2, as set forth in Title 18, United States Code, Section 1961(1)(B).
Complaint P137. The defendants challenge the adequacy of this part of the complaint on several points.
First, they argue that the New York State offense of coercion is not "racketeering activity" as defined by Section 1961(1)(A).
The government concedes that, as a literal matter, Section 1961(1)(A) does not define racketeering activity to include state law offenses that involve coercion as such; however, the government argues, Section 1961(1)(A) does encompass state law offenses that involve extortion. The government submits that coercion under New York law falls within "extortion" as used in Section 1961(1)(A).
Under the New York Penal Law, extortion is proscribed as a type of larceny:
Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent prescribed in subdivision one of this section, committed in any of the following ways:
A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:
(i) Cause physical injury to some person in the future; or
(ii) Cause damage to property; or
(iii) Engage in other conduct constituting a crime; or
A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:
1. Cause physical injury to a person; or
2. Cause damage to property; or
3. Engage in other conduct constituting a crime; or
New York Penal Law Section 135.60. Finally, "coercion in the first degree" (a felony), the offense alleged in the complaint for the first 195 acts of racketeering, is defined as follows:
A person is guilty of coercion in the first degree when he commits the crime of coercion in the second degree, and when:
1. He commits such crime by instilling in the victim a fear that he will cause physical injury to a person or cause damage to property; or
2. He thereby compels or induces the victim to:
(a) Commit or attempt to commit a felony; or
(b) Cause or attempt to cause physical injury to a person; or
(c) Violate his duty as a public servant.
New York Penal Law Section 135.65. Thus, it is clear that the offense alleged in the indictment, coercion in the first degree, is grounded in the conduct proscribed as coercion in the second degree. The offense of coercion in the second degree, by turn, is parallel to the offense of larceny by extortion. However, the offenses of coercion and of larceny by extortion are clearly distinct under New York Law: Coercion is the compelling of a person (by instilling fear in him) to do an act (or not to do an act) which that person has a legal right not to do (or to do); but larceny by extortion is the compelling of a person (by instilling fear in him) to surrender property. Thus, although larceny by extortion may analytically fall within the definition of coercion -- in that to compel a person to surrender property is also to compel a person to do an act which that person has a legal right not to do -- it is not the case that every act of coercion is also an act of larceny by extortion. Rather, larceny by extortion requires the particular element of forcing a person to surrender property -- an element not required by the offense of coercion.
The government argues that, although larceny by extortion and coercion are distinct offenses under New York law, Section 1961(1)(A) is ...