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UNITED STATES v. MAZZIO

December 8, 1980

UNITED STATES of America
v.
Augustine MAZZIO, a/k/a Gus Leon Mazzio, Theodore Paige, a/k/a Teddy Samuel Sliwoo



The opinion of the court was delivered by: LUONGO

Defendants have been charged under a number of federal statutes with engaging in an illegal gambling operation affecting interstate commerce, and with conspiring to bribe Philadelphia police officers in furtherance of the gambling operation. Defendant Augustine Mazzio now moves to dismiss or to strike portions of the indictment.

I. RICO Charges

 Defendants have been charged under Title IX of the Organized Crime Control Act, "Racketeer Influenced and Corrupt Organizations" (RICO), 18 U.S.C. § 1961 et seq., with conducting the affairs of an enterprise by engaging in a pattern of racketeering activities. The indictment charges that the enterprise in which the defendants participated was the illegal gambling operation. Mazzio contends that under 18 U.S.C. § 1961(4), an enterprise can only consist of a legitimate business entity, and does not extend to wholly illegal entities such as a gambling operation, because in enacting the RICO provisions the congressional intent was to prevent infiltration of legitimate business by organized crime. The government contends that the gambling operation in question fits within the literal terms of § 1961(4), in that the definition of enterprise includes any "group of individuals associated in fact although not a legal entity."

 The Court of Appeals for the Third Circuit has not yet decided this question. United States v. Provenzano, 620 F.2d 985, 993 (3d Cir. 1980). In dicta, however, it noted that it was loathe to give a defendant the benefit of a defense that he should escape liability under RICO because he was careful to limit himself to wholly illegal activities. Id. It also noted that five circuits have rejected the contention that RICO is limited in application to instances in which legitimate business is subverted. United States v. Rone, 598 F.2d 564 (9th Cir. 1979); United States v. Swiderski, 193 U.S. App. D.C. 92, 593 F.2d 1246 (D.C.Cir.1978), cert. denied, 441 U.S. 933, 99 S. Ct. 2055, 60 L. Ed. 2d 662 (1979); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978); United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S. Ct. 736, 50 L. Ed. 2d 750 (1977); United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1121, 43 L. Ed. 2d 395 (1975). As Mazzio points out, only two circuits have adopted the construction urged by him. United States v. Turkette, 632 F.2d 896 (1st Cir. 1980); United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980). *fn1"

 RICO is a remedial statute which is to be liberally construed to effectuate its purposes. United States v. Forsythe, 560 F.2d 1127, 1135-36 (3d Cir. 1977); United States v. Provenzano, supra. All of the circuit courts which have given RICO a broad construction have noted that there is no reflection in the legislative history of a congressional intention to limit the reach of the statute, and that on its face it applies to "any" group of individuals associated in fact. The report of the Senate Judiciary Committee on the Organized Crime Control Act specifically noted that the government must be empowered "to prohibit directly substantial enterprises of gambling." Sen.Rep. 91-617, pp. 72, 73 (1969), (emphasis supplied). In the absence of clear evidence of a congressional intent to limit RICO prosecutions, and in view of indications in Provenzano, supra, that the Court of Appeals for the Third Circuit would follow the majority view, I agree with the government that the definition of enterprise under § 1961(4) is broad enough to encompass an organization wholly devoted to illegal pursuits.

 Mazzio next contends that in counts one and two of the indictment, the government has failed to allege a sufficient effect upon interstate commerce, as required by § 1962(c). The government need not prove that each predicate act of racketeering charged has an effect on interstate commerce, but only that the activity of the enterprise itself does. United States v. Nerone, 563 F.2d 836, 852-54 (7th Cir. 1977). "The Government must show a nexus of the enterprise to interstate or foreign commerce, albeit minimal, to satisfy the requirement." United States v. Rone, 598 F.2d 564, 573 (9th Cir. 1979). Here, the government has alleged that Mazzio travelled from New Jersey to Pennsylvania to conduct the enterprise of illegal gambling. In view of the limited showing which must be made, I find that this is a sufficient effect on commerce under § 1962(c).

 Mazzio next contends that the indictment does not show a pattern of racketeering activity as required by 18 U.S.C. § 1961(5), because it alleges a single, overall bribery scheme, which is insufficient to constitute a pattern. Under § 1961(5), a pattern of racketeering activity is defined as "at least two acts of racketeering activity," and both bribery and gambling are included in the definition of "racketeering" under subsection (1). Moreover, Mazzio is charged with tendering numerous payments as bribes, and each is chargeable as a separate offense, even though related to one overall scheme. In United States v. Salvitti, 451 F. Supp. 195 (E.D.Pa.), aff'd, 588 F.2d 824 (3d Cir. 1978), the defendant was charged with accepting a single bribe, and with engaging in at least one act of mail fraud. The district court held that this activity fell within the literal terms of the statute, and concluded that one overall illegal scheme, perpetrated by separate criminal acts, can constitute a pattern of racketeering, and can be prosecuted under the RICO statute. Here, since Mazzio is charged with engaging in at least two discrete acts of racketeering activity as defined by § 1961(1), and this fulfills the statute's definition of a pattern, I am satisfied that his activities do fall within the terms of the RICO statute.

 Mazzio finally contends that the predicate offenses of bribery underlying the RICO charges are not "chargeable" and "punishable" under state law, as required by § 1961(1)(A), because the statute of limitations for these offenses has run. This argument is totally devoid of merit, because the Court of Appeals has held that the predicate offenses need only have been chargeable at the time they were committed. United States v. Davis, 576 F.2d 1065, 1066-67 (3d Cir. 1978). The state statute of limitations for the predicate offenses is simply irrelevant to the federal prosecution.

 II. Impossibility

 Mazzio also attacks counts one, two, and seven of the indictment on the ground that it was impossible for him to accomplish the acts of bribery charged, in that the subject of the bribes was an undercover Philadelphia policeman, who accepted the money with the approval of his superiors, and who did not intend to perform any "service" in return for the money. Under Pennsylvania law, "the gravamen of the offense (of bribery) is the solicitation or acceptance of a bribe, not the delivery of its quid pro quo." Davis, supra, 576 F.2d at 1067. It follows that the converse of this proposition is also true: the mere offering of a bribe to a public servant completes the offense. Furthermore, 18 Pa.Con.Stat.Ann. § 4701(b) specifically excludes as a defense an argument that the subject to whom the bribe was offered could not perform the actions desired by the person offering the bribe. Mazzio cannot therefore avail himself of an impossibility defense.

 III. Due Process -- Entrapment

 Mazzio further contends that he was entrapped by the government, and that the conduct of the police was so outrageous as to rise to the level of a due process violation. United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). The defendant cites no particular facts in support of either contention, but rather relies on a general contention that the use of an undercover agent by police, who recorded conversations with the defendants, duped Mazzio into unfairly incriminating himself.

 At this stage in the case, the record simply is not sufficiently developed to allow me to decide the merits of either contention. If the evidence at trial lends support to these contentions, Mazzio may renew his motion on ...


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