From this conclusion it follows that, since the federal constitutional standard is governing, and since, as shown previously, the allegation assailed by the motion is squarely condemned by that standard, the motion must be granted.
As a practical matter, the Government's case is not weakened by striking the assailed paragraph. Sufficient allegations remain, as in U.S. v. Johnson, 383 U.S. at 169, 86 S. Ct. 749, 15 L. Ed. 2d 681, to establish an offense without resort to proof of privileged legislative conduct.
In the case at bar, these charge Mazzei with participation as an "insider" in operation of the Levitt enterprise. However, it has been stipulated and conceded that the Government's evidence relates to a period of time which, as held in this Court's opinion of February 22, 1977, is foreclosed by the Pennsylvania statute of limitations. Hence Mazzei is entitled to dismissal upon that ground.
The second motion advanced by defendant Mazzei is to quash the entire indictment, on the ground that it fails to comply with Rule 7(c)(2) F.R.Cr.P. which provides that: "When an offense charged may result in a criminal forfeiture, the indictment . . . shall allege the extent of the interest or property subject to forfeiture."
As pointed out in this Court's opinion of February 22, 1977, 18 U.S.C. 1963 does provide for forfeiture as a remedy for violations of 18 U.S.C. 1962. Forfeitability extends not only to any "interest" in the enterprise, but to any "claim against, or property or contractual right of any kind" affording a source of influence over the enterprise.
A strained construction of Section 1963 might regard profits or fruits received from the enterprise as available revenue which might be used as funds to be reinvested in the enterprise or otherwise to influence its operation.
However, the more natural interpretation is that an "interest" is akin to a continuing proprietary right in the nature of partnership or stock ownership (or holding a debt or claim, as distinguished from "equity" investment) rather than mere dividends or distributed profits.
It is true that the mandatory requirement to describe the property interest forfeitable applies when the offense charged "may result in a criminal forfeiture," not merely when the Government in fact claims such a forfeiture. See U.S. v. Hall, 521 F.2d 406, 407-408 (C.A.9, 1975).
Nevertheless, in view of the Government's concession that the evidence against Mazzei would show no participation by him in the enterprise after 1972, there is much force in the Government's contention that there no longer was in existence any forfeitable interest at the date of the indictment.
Under that assumption, conviction could not "result" in forfeiture, whether or not the Government sought it, and hence the requirement for description of the interest would not be operative.
Accordingly the motion to quash the indictment will be denied.