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UNITED STATES v. FINEMAN

April 1, 1977

UNITED STATES OF AMERICA
v.
HERBERT FINEMAN



The opinion of the court was delivered by: FULLAM

 FULLAM, J.

 The defendant, Herbert Fineman, has filed a Motion to Dismiss nine of the ten counts of the Indictment in this case. The motion raises a great many issues, all of which have been thoroughly briefed and argued, *fn1" but because of the desirability of prompt disposition of the motion, full discussion of every issue will not be attempted in this Memorandum. Instead, after presenting the issues which must be decided, I shall, for the most part, merely set forth my conclusions and a brief summary of the reasons, deferring further elaboration until after trial.

 I. THE FACTS ALLEGED

 For purposes of disposing of this motion, the following facts, as set forth in the Indictment, must be assumed to be true:

 At all pertinent times, the defendant occupied a leadership position as a member of the House of Representatives of the Commonwealth of Pennsylvania. During a portion of the relevant period, he was Minority Whip; during the balance he was Speaker of the House. One Martin Abrams was a Democratic committeeman in the City of Philadelphia, within the legislative district represented by the defendant, and within the ward in which the defendant was the Democratic ward leader.

 On four occasions between September 1970 and March 1973 the defendant and Abrams carried out a scheme or arrangement pursuant to which the parents of students wishing to enroll in certain graduate schools within the Commonwealth of Pennsylvania (two medical schools and a veterinary school, all of which received substantial financial support through legislative appropriations) were induced by Abrams to pay large sums of money (ranging from $11,000 to $15,000 per student) in order to influence favorable action upon their respective applications. Abrams did not tell the parents the identity of the person whose influence would thus be obtained. The defendant, through letters and otherwise, would recommend favorable action on the applications by the graduate school involved. After the student was accepted, most of the money collected by Abrams was turned over to the defendant and retained by him.

 During 1976, the defendant on various occasions and in various ways sought to prevent the F.B.I. and a Federal Grand Jury from learning of the foregoing events, by successfully urging Abrams to plead the Fifth Amendment before the Grand Jury, and then, after immunity was granted, urging him to commit perjury; by causing the destruction of certain records; and by attempting to cause the destruction of other records.

 II. THE INDICTMENT

 The first two counts charge violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Count I charges a violation of § 1962(c), which provides:

 
"(c) 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 . . . ."

 Count II charges a violation of § 1962(d), conspiracy to commit the violation of Subsection (c).

 Counts III, IV, and V charge mail fraud in violation of 18 U.S.C. § 1341.

 Count VI charges the defendant with obstructing a criminal investigation in violation of 18 U.S.C. § 1510 on the basis of alleged attempts to hinder the F.B.I. investigation.

 Counts VII, VIII, IX and X charge obstruction of justice in violation of 18 U.S.C. § 1503, relating to alleged efforts to hinder the Grand Jury. The defendant does not now seek dismissal of Count X.

 III. DISCUSSION

 A. THE RICO COUNTS.

 Section 1962(c) of the RICO statute makes it a federal crime for any person associated with any "enterprise" whose activities affect interstate or foreign commerce to participate in conducting the affairs of the enterprise "through a pattern of racketeering activity." The Government's theory is that the association between the defendant and Abrams for obtaining money from the parents of would-be graduate students was an "enterprise" within the meaning of the statute; that its activities affected interstate and foreign commerce; that the four payment transactions constituted bribery or extortion, ...


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