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UNITED STATES v. GOTTI

March 12, 1998

UNITED STATES OF AMERICA, against JOHN A. GOTTI, LOUIS RICCO, MARIO ANTONICELLI, GREGORY DEPALMA, CRAIG DEPALMA, MICHAEL SERGIO, STEPHEN SERGIO, WILLIAM MARSHALL, DOMINICK LOIACONO, ROBERT SANSEVERINO, LEONARD MINUTO, SR., STEVEN FORTUNATO, VINCENT ZOLLO, PETER FORCHETTI, CHRISTIAN BINNIE, JOHN FORCELLI, MARCO BARROS, ANTHONY PLOMITALLO, MICHAEL ZAMBUROS, SALVATORE LOCASCIO, ANGELO PRISCO, JOHN SIALIANO and DENNIS MCLAIN, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 On January 20, 1998, the 23 defendants in this case were charged in a 60 count indictment (the "Indictment") with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). *fn1" The Indictment alleges that the defendants, as participants in a criminal enterprise known as the Gambino Crime Family, engaged in extortion, fraud, loansharking, money laundering, obstruction of justice, and illegal gambling, among other racketeering activities.

 The Indictment seeks, among other things, the forfeiture, under 18 U.S.C. § 1963, of assets linked to the defendants' racketeering activities, including the cash proceeds of such activities. The Indictment alleges that the defendants' racketeering activities generated as much as $ 20 million of cash proceeds, much of which, although directly forfeitable, is not available for forfeiture. Consequently, the Indictment contemplates the forfeiture, pursuant to § 1963(m), of substitute assets of the defendants in the event that directly forfeitable assets, including cash proceeds, are unavailable for forfeiture at the time of judgment.

 The analysis of this issue must, of course, begin with an examination of the statutory language. United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981) ("In determining the scope of a statute we look first to its language.") (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980)). Subsection 1963(a) provides for the forfeiture of assets that are linked, directly or indirectly, to the racketeering enterprise. Subsection (a) states:

 
Whoever violates any provision of section 1962 of this chapter... shall forfeit to the United States, irrespective of any provision of state law--
 
(1) any interest the person has acquired or maintained in violation of section 1962;
 
(2) any --
 
(A) interest in;
 
(B) security of;
 
(C) claim against; or
 
(D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and
 
(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt ...

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