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UNITED STATES v. FORSYTHE

February 22, 1977

UNITED STATES of America, Plaintiff,
v.
Robert E. FORSYTHE et al., Defendants. UNITED STATES of America, Plaintiff, v. Sam MEYERS et al., Defendants. UNITED STATES of America, Plaintiff, v. Frank BRUNO et al., Defendants. UNITED STATES of America, Plaintiff, v. Samuel BARBOUR et al., Defendants. UNITED STATES of America, Plaintiff, v. Jacob WILLIAMS et al., Defendants. UNITED STATES of America, Plaintiff, v. Regis NAIRN et al., Defendants



The opinion of the court was delivered by: DUMBAULD

 The case at bar involves several indictments charging a bail bond agency, together with numerous members of the Pennsylvania minor judiciary as well as minor ministerial personnel such as constables, court attendants, and the like) in the Allegheny County area with actions allegedly violating 18 U.S.C. 1961-63, 84 Stat. 941-43. These provisions form Title IX (captioned "Racketeer Influenced and Corrupt Organizations", hence sometimes referred to as the "Rico" statute) of the "Organized Crime Control Act of 1970", approved October 15, 1970, 84 Stat. 922, Public Law 91-452. *fn1"

 The principal purpose of the legislation is to strengthen the means of preventing money and power "obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation" from being "used to infiltrate and corrupt legitimate businesses and labor unions and to subvert and corrupt our democratic processes" so as to interfere with free competition and to burden interstate and foreign commerce.

 Section 1962 sets forth the prohibited activities proscribed by the statute. Subsection (a) forbids investment of income derived from a pattern of racketeering activity in any enterprise engaged in interstate (or foreign) commerce or the activities of which affect such commerce. Subsection (b) forbids acquisition of "any interest in or control of" such an enterprise "through a pattern of racketeering activity."

 Subsection (c), with which we are here principally concerned, provides that it shall be unlawful "for any person employed by or associated with" such an enterprise "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."

 Subsection (d) forbids "any person to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section." *fn2"

 Viewing section 1962 synoptically, we see that subsection (a) forbids investment in an enterprise of money "derived directly or indirectly from a pattern of racketeering activity"; subsection (b) forbids the direct acquisition of an interest in an enterprise "through a pattern of racketeering activity." These two subsections relate to acquisition of an interest in or control of an enterprise by an outsider. They forbid "takeovers", to use a term familiar in corporation law. Subsection (c), on the other hand, looks inward and forbids "behavioral" wrongdoing by persons connected with the enterprise itself, to use a term familiar in antitrust analysis. *fn3"

 The remedies provided are also reminiscent of antitrust law. Divestiture is ordained as an appropriate civil remedy, as well as reorganization of the enterprise; and triple damage suits may be brought by private parties injured in their business or property. Section 1964. An expediting certificate filed by the Attorney General is another analogy to antitrust litigation [Section 1966]; as is the provision for "civil investigative demands" in lieu of grand jury subpoenas [Section 1968].

 Forfeiture is also authorized as a remedy. If the forfeited interest is "not exercisable or transferable for value by the United States, it shall expire." Section 1963.

 It remains to ascertain what a "pattern" of racketeering activity embraces. As defined in Section 1961(5) this concept "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."

 Finally, "racketeering activity" itself is defined, for present purposes, in Section 1961(1)(A), as "any act or threat involving . . . bribery . . . which is chargeable under State law and punishable by imprisonment for more than one year." *fn4"

 It should be noted that to be "racketeering activity" the activity must be (1) bribery; (2) punishable under State law; (3) by imprisonment for more than one year.

 The word "bribery" in Title IX of the 1970 statute is used in its ordinary meaning. The term is familiar in common speech. Its basic feature is the prostitution of a public trust for private gain. *fn5" It is the civil equivalent of simony. See Acts 8:18-21. It involves the wrongful giving or taking of a thing of value to influence official action. Bribery was a common law crime, classified by Blackstone (Commentaries, IV, 139) as an offense against public justice, and defined as occurring "when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in office."

 To constitute "racketeering activity" an offense must not only constitute "bribery" as understood in the preceding discussion, but must also constitute an offense under State law and be punishable thereunder by imprisonment for more than one year. What activities of that threefold nature are referred to by the indictments in the case at bar? What Pennsylvania criminal statutes are pertinent in delineating an offense constituting "racketeering activity"?

 Pennsylvania punishes bribery eo nomine. 18 P.S. 4701(a) provides:

 
A person is guilty of bribery, a felony of the third degree, *fn6" if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
 
(1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;
 
(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.

 That provision took effect on June 6, 1973. Previously, bribery eo nomine was a misdemeanor punishable by imprisonment not exceeding one year, with respect to the "briber" but by imprisonment not exceeding five years, with respect to the "bribee", as set forth in former 18 P.S. 4303:

 
Whoever shall directly or indirectly, or by means of and through any artful and dishonest device whatever, give or make any promise, contract or agreement, for the payment, delivery, or alienation of any money, goods or other thing, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree, or behavior of any member of the General Assembly, or any officer or employe of this Commonwealth, or of any political subdivision thereof, or any judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing, whatsoever, depending or which shall depend before him or them, is guilty of bribery, a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500), or to undergo imprisonment by separate or solitary confinement at labor not exceeding one (1) year, or both.
 
The member of assembly, or officer, or employe of the Commonwealth or of any political subdivision thereof, or any judge, juror, justice, referee, or arbitrator, who shall accept or receive, or agree to accept or receive such bribe, is guilty of receiving a bribe, a felony, and on conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment by separate or solitary confinement at labor not exceeding five (5) years, or both.

 At the same time there was a separate offense designated "corrupt solicitation" established by old 18 P.S. 4304:

 
Whoever, directly or indirectly, by offer or promise of money, office, appointment, employment, testimonial or other thing of value, or by threats or intimidation, endeavors to influence any member of the General Assembly, State, county, election, municipal or other public officer, in the discharge, performance, or nonperformance of any act, duty or obligation pertaining to such office, is guilty of corrupt solicitation, a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding two (2) years, or both.

 Chronic recidivism with respect to corrupt solicitation, to the extent of becoming a defendant's "occupation" or profession was separately punishable under old 18 P.S. 4305:

 
Whoever follows the occupation or practice of soliciting members of either House of the General Assembly, or public officers of the State or of any political subdivision thereof, to corruptly influence their official action, is guilty of the practice of corrupt solicitation, a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding two (2) years, or both.

 In our opinion, violation of the present Pennsylvania bribery statute [18 P.S. 4701(a)] clearly complies with the threefold test prescribed in 18 U.S.C. § 1961(1)(A) and constitutes "racketeering activity." But also the four former separately specified offenses (designated as "bribery", "receiving a bribe", "corrupt solicitation", and "practice of corrupt solicitation", respectively) are sufficiently similar in nature, and sufficiently correspond to the basic feature of bribery as understood at common law and in common speech, that they too constitute "bribery" within the meaning of 18 U.S.C. § 1961(1)(A). However, the offeror, as distinguished from the recipient of a bribe, can not be found guilty of "racketeering activity" with respect to a transaction occurring before June 6, 1973, because the punishment for "bribery" under Pennsylvania law was not then "imprisonment for more than one year" but was for a term " not exceeding " one year [italics supplied].

 We agree also with the contention of counsel for some defendants that a violation of former Pennsylvania laws can not constitute "racketeering activity" if the Pennsylvania statute of limitations applicable to such offenses had run before the date of the instant indictments.

 Having reviewed the substantive law relative to the pending indictments, we turn to the rules regarding the validity of the search warrant ...


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