The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
Defendants William Cutolo, Vincent DeMartino, Gabriel Scianna, Michael Spataro, Joseph Russo, Frank Iannaci, and Frank Campanella have been indicted for conspiracy to murder in order to gain entrance to and maintain and increase their positions in an enterprise engaged in racketeering activity, in violation of 18 U.S.C. § 1959, and for using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 1924. Cutolo is also charged with murder under 18 U.S.C. § 1959. Defendants have made various motions.
The indictment alleges, in substance, the following. The defendants are members and associates of the Colombo Organized Crime Family of La Cosa Nostra, an enterprise affecting interstate commerce and engaged in racketeering activity. By June of 1991 the Colombo Family had split into two warring factions, each headed by a person desiring to become the Boss of the Family. One faction supported Victor Orena, the Acting Boss of the Family, and the other supported Alphonse Persico, son of the Boss of the Family. The defendants are allegedly members of the Orena faction.
The indictment contains five counts. The first two counts charge Cutolo with the murder of and with conspiracy to murder James Angellino in November 1988, for the purpose of gaining entrance to and maintaining and increasing Cutolo's position in the Colombo Family.
The third count says that in June 1991 all the defendants conspired to murder members of the Persico faction in order to gain entrance to and maintain and increase their positions in the Colombo Family.
The fourth and fifth counts charge the defendants with using and carrying firearms during and in relation to the crimes charged in the first three counts.
All the defendants move to dismiss Counts One through Three on the ground that 18 U.S.C. § 1959 is unconstitutionally vague on its face and as applied.
Section 1959 provides, in pertinent part:
Whoever, . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engage in racketeering activity, murders, . . . or conspires to do so, shall be punished [as set forth].
The statute is "void for vagueness" only if it fails to define the criminal offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Jackson, 968 F.2d 158, 161 (2d Cir.), cert. denied, 121 L. Ed. 2d 589, 113 S. Ct. 664 (1992).
The court considers whether § 1959 is vague as applied here, but not whether it is vague on its face. "Vagueness challenges to statutes that do not involve First Amendment interests are examined in light of the facts of the case at hand." Id. Section 1959 does not impinge on First Amendment interests.
Defendants say that the reference to "an enterprise engaged in racketeering activity" in § 1959 renders the statute unconstitutional because a defendant cannot determine what that language means. Their first argument is that enterprises do not engage in racketeering activities, people do. Second, they say that in any event the statute does not provide sufficient guidance to determine whether an enterprise has in fact engaged in racketeering activity.
A. Can an enterprise engage in racketeering activity?
Referring to caselaw under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., the defendants argue that § 1959's requirement that "an enterprise engage in racketeering activity" is incomprehensible. They point to rulings of the Second Circuit Court of Appeals holding that it is a misconstruction of the RICO statute to look for an enterprise's racketeering acts instead of an individual's racketeering acts. United States v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 27-30 (2d Cir. 1989) (organized crime family not a "person" subject to suit under RICO); United States v. Persico, 832 F.2d 705, 714 (2d Cir. 1987) ("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."), cert. denied, 486 U.S. 1022, 108 S. Ct. 1995, 100 L. Ed. 2d 227 (1988); see also United States v. Private Sanitation Indus. Ass'n, 793 F. Supp. 1114, 1128 (E.D.N.Y. 1992).
In contrast Section 1959 is directed toward specified crimes committed by persons on behalf of a RICO racketeering enterprise. United States v. Concepcion, 983 F.2d 369, 380-81 (2d Cir. 1992), cert. denied, 114 S. Ct. 163, 126 L. Ed. 2d 124 (1993). But by its terms the section also requires the government to prove not only that the activities engaged in by the enterprise affect interstate commerce, as in RICO, 18 U.S.C. § 1959(b)(2), but that at least some of those activities are "racketeering activity" as defined in § 1961. 18 U.S.C. § 1959(a).
B. Has the enterprise engaged in racketeering activity?
The defendants, citing RICO, say that a defendant cannot determine when an enterprise has "engaged in racketeering activity." The argument is that while § 1961(1) of RICO defines "racketeering activity" to include the commission of a long list of crimes, federal and stater § 1959 does not spell out how many crimes must be committed and by whom to satisfy that section's prerequisite that the "enterprise" be "engaged" in such activity.
An enterprise, here a group of individuals associated in fact, can only act through its members, associates, or employees. There should be no difficulty in determining whether predicate crimes committed by such persons were on behalf of the enterprise.
Presumably § 1959 does not apply where such persons committed only a single crime. The word "engaged" implies more than that. But this court need not decide how extensive the criminal activity must be before the enterprise may be said to "engage" in racketeering.
Here the indictment describes the Colombo Family as an organization dedicated primarily, if not exclusively, to extensive criminal activities coming within § 1961's definition of racketeering activity. Paragraph 10 of the indictment alleges:
The principal purpose of the enterprise was to generate money for its members and associates through various criminal activities, including the operation of illegal gambling businesses, the extortionate extensions and collections of credit, and the generation of income from various businesses through illegal means, including the exploitation of the Colombo Family's corrupt control of union officials. . . .
It would be fatuous to say that defendants had no notice that the alleged activities of the Colombo Family fulfill § 1959's requirement that the enterprise "engaged in racketeering activity." The pervasiveness of the enterprise's alleged racketeering activities precludes any thought that this requirement is unconstitutionally vague as applied. See United States v. Giampa, 1992 U.S. Dist. LEXIS 14266, 1992 WL 249885 (S.D.N.Y. Sept. 23, 1992) (§ 1959 not unconstitutionally vague where the enterprise was the Luchese Organized Crime Family and indictment alleged means and methods of enterprise).
The defendants move to dismiss the first three counts because in the grand jury the government did not corroborate accomplice testimony as to murder or conspiracy to murder.
Section 1959 was originally enacted as 18 U.S.C. § 1952B, a companion to the Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises statute. 18 U.S.C. § 1952. Section 1952 makes interstate or foreign travel or commerce with the intent to engage in actions "in violation of the laws of the State in which they are committed or of the United States" subject to federal prosecution.
In construing § 1952 the Second Circuit Court of Appeals has held that courts must look to the underlying state law to determine the elements of and defenses to the crimes charged. United States v. Kahn, 472 F.2d 272, 277 (2d Cir.), cert. denied, 411 U.S. 982, 93 S. Ct. 2270, 36 L. Ed. 2d 958 (1973). From this defendants argue that because Congress originally enacted § 1959 as § 1952B the government must prove here not merely the generic crime of murder but must prove all the elements of murder under New York law, must meet all New York state law defenses, and must corroborate accomplice testimony as would be required in a New York state prosecution. See N.Y. Crim. Proc. Law §§ 60.22 and 190.65.
Insofar as defendants say the government must corroborate accomplice testimony the premise of the argument is dubious because none of the cases under § 1952 required the incorporation of state procedural and evidentiary law or held the New York corroboration requirement was substantive.
In any event, the Court of Appeals for the Second Circuit has held that in a RICO prosecution the corroboration requirement is a procedural rule and need not be adhered to. United States v. Paone, 782 F.2d 386, 393 (2d Cir.), cert. denied, 483 U.S. 1019, 107 S. Ct. 3261, 97 L. Ed. 2d 761 (1986). Section 1959 complements RICO and should be liberally construed In the same way. Concepcion, 983 F.2d at 381. The slight differences in wording between § 1961 of RICO and § 1959 are not significant.
Although the issue has not heretofore been raised in the Second Circuit Court of Appeals, that court has affirmed judgments of conviction under § 1959 where the District Courts have ruled that corroboration was not required. See, e.g., United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994). ...