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UNITED STATES v. JOSEPH

April 2, 1981

UNITED STATES of America
v.
Joseph A. JOSEPH



The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

The government has charged that defendant, the Clerk of Courts of Lehigh County, violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., by soliciting and accepting various amounts of cash from a bailbondsman in consideration for defendant's favorable recommendations and exercise of discretion in his official decisions. Defendant has filed several pre-trial motions addressed seriatim below.

 First, defendant attacks the factual sufficiency of the indictment, which must allege as an essential element of the crime that defendant's enterprise activities affected interstate commerce. See 18 U.S.C. § 1962. Defendant, contending that the indictment fails to state facts sufficient to constitute an effect upon interstate commerce, relies principally upon United States v. Vignola, 464 F. Supp. 1091 (E.D.Pa.), aff'd, 605 F.2d 1199 (3d Cir. 1979), cert. denied, 444 U.S. 1072, 100 S. Ct. 1015, 62 L. Ed. 2d 753 (1980), which he cites for the proposition that the racketeering activities of a traffic court judge cannot have an effect upon interstate commerce absent maintenance of an out-of-state office. Since the Lehigh County Clerk of Courts operates no out-of-state offices, defendant reasons, interstate commerce has not been affected within the meaning of the RICO statute.

 Clearly, however, Vignola held that defendant's racketeering activity need not affect interstate commerce; rather, the named enterprise, not the individual defendant, must be engaged in or affecting interstate commerce. See id. at 1098-99. See also United States v. Haley, 504 F. Supp. 1124 (E.D.Pa.1981). The Vignola court premised its ruling upon the plain reading of the statute, the legislative history and the Supreme Court's analysis of Congress' ability to proscribe wholly intrastate activities which affect interstate commerce.

 The RICO statute, 18 U.S.C. § 1962, states in relevant part that

 
it shall be unlawful for any person to receive any income derived, directly or indirectly, from a pattern of racketeering activity ... in ... the operation of any enterprise which is engaged in, or the activities of which, affect interstate commerce. (emphasis added)

 This "plain language" compels the conclusion that, in order to criminalize an individual's conduct, he must operate an enterprise affecting interstate commerce through a pattern of racketeering activities. See United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980), Andrus v. Allard, 444 U.S. 51, 56, 100 S. Ct. 318, 322, 62 L. Ed. 2d 210 (1979), Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S. Ct. 2361, 2366, 60 L. Ed. 2d 980 (1979). To limit the statute's scope to interstate racketeering activity, Congress could have interjected the word "interstate" between the word "of" and the words "racketeering activity" to insure that the statute would penalize those who "receive income ... from a pattern of interstate racketeering activity". Congress did not do so and, in fact, declared that the statute should be "liberally construed". See Congressional Statement and Finding of Purpose, Pub.L. No. 91-452, 84 Stat. 922-23 (1970). Finally, Vignola relied upon Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), where the Supreme Court, holding that the Commerce Clause reaches wholly intrastate "loansharking", reasoned that so long as the defendant is a "member of the class" which engaged in federally interdicted conduct and that the "class of activities" is properly within the reach of federal authority, courts have "no power to excise, as trivial, individual instances" of the class. Id. at 154, 91 S. Ct. at 1361 (citation omitted). The critical inquiry under Perez is whether defendant's alleged acceptance of bribes, which supposedly constitute the pattern of racketeering activity, places his conduct within the class of activities properly within reach of the federal power. See 18 U.S.C. §§ 1961(1) and (5). To answer this question, courts simply determine whether Congress had a rational basis for finding that the regulated activity affects commerce, and, if such a basis exists, whether the regulatory means selected by Congress are reasonable and appropriate. United States v. Rone, 598 F.2d 564, 573 (9th Cir. 1979), cert. denied sub nom. Little v. Brown, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980), United States v. Sacco, 491 F.2d 995, 999 (9th Cir. 1974) (en banc), United States v. Ceraso, 467 F.2d 653, 657-58 (3d Cir. 1972). In enacting RICO, Congress found that

 
organized crime ... highly sophisticated and diversified ... drains billions of dollars from America's economy by unlawful conduct and ... corruption ... (and that it) corrupt(s) our democratic processes ... (and) seriously burden(s) interstate and foreign commerce.

 Congressional Statement and Finding of Purpose, supra. Defendant has neither alleged nor demonstrated that Congress' findings lack a rational basis or that the means which Congress chose to rid the economy of a recognized menace are irresponsible or inappropriate.

 Moreover, most courts do have an effect upon interstate commerce, United States v. Vignola, 464 F. Supp. at 1097, as do sheriff's departments, United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980), and the offices of prosecuting attorneys, United States v. Altomare, 625 F.2d 5, 8 (4th Cir. 1980), all of which place interstate telephone calls, purchase supplies and materials through interstate commerce and involve non-citizens of the forum state in litigation. In summary, RICO is a proper exercise of federal power. The indictment sufficiently states facts alleging that defendant's enterprise activities affected interstate commerce. Defendant's motion will be denied.

 Second, defendant moves to dismiss on the grounds of preindictment delay. Defendant claims that, prior to notification in September 1980 that a grand jury had targeted him for investigation, federal officers questioned him repeatedly for several months and that the resulting five-month delay in return of the indictment prejudiced him by depriving him of his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial. Hence, defendant argues, the indictment should be dismissed.

 Defendant does not assert that his right to a speedy post-indictment trial has been violated. See Speedy Trial Act, 18 U.S.C. § 3161 et seq., and Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Rather, defendant complains that the government's delay in returning the indictment prejudices his right to a speedy determination of the charges. In United States v. Marion, 404 U.S. 307, 320-21, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971), the Supreme Court, holding that a formal indictment or information or the "actual restraints imposed by arrest" triggers application of the Sixth Amendment guarantee to a speedy trial, declined to extend the reach of this right to the period prior to arrest. The court reasoned that statutes of limitation and the Due Process Clause provide defendants with sufficient protection against the possibility of prejudicial pre-accusation delay. Id. at 323-24, 92 S. Ct. at 464-65. Declining to define precisely the limitations which the Due Process Clause imposes upon pre-indictment delay, the court stated that dismissal would be warranted if defendant could show at trial not only that the delay substantially prejudiced his rights to receive a fair trial but also that the government intentionally delayed the indictment to gain a tactical advantage. Id. at 323-24, 92 S. Ct. at 464-65.

 Further eroding defendant's argument, the court subsequently noted in United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52 L. Ed. 2d 752 (1977), that a mere allegation of prejudice will not invoke the "limited role" of the Due Process Clause in protecting against pre-indictment delay. In fact,

 
proof of actual prejudice makes a due process claim concrete and ripe for adjudication(; it does not) make(s) the claim ...

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