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UNITED STATES v. PERKINS

February 13, 1984

UNITED STATES OF AMERICA
v.
SIDNEY PERKINS, BERNARD OSSER, ROSE MORRIS, NORTH BROWARD INDUSTRIES, INC., Government Sales Division SOUTHERN COMMERCIAL, INC.



The opinion of the court was delivered by: CAHN

 CAHN, J.

 Before me are motions for post-verdict relief filed by defendants Sidney Perkins, Bernard Osser and Rose Morris. The 42-count indictment in this case charged the above-named defendants with conspiracy to defraud the United States by rigging bids to a defense procurement agency. The Government alleged that defendant Sidney Perkins had set up six corporations to appear to be separate and independent vendors bidding competitively for defense contracts. Using these corporations, Perkins rigged and manipulated bids submitted to the Defense Industrial Supply Center in Philadelphia (DISC), an arm of the Department of Defense. The Government further alleged that Perkins, in exchange for cash and other gratuities, obtained technical drawings from Bernard Osser, a contracting officer at DISC, and Rose Morris, a file clerk at the Naval Air Technical Services Facility (NATSF) in Philadelphia. According to the Government, Osser assisted Perkins in preparing claims submitted to DISC in return for trips to Florida and other things of value and, in addition, negotiated with Perkins regarding future employment without informing his DISC superiors. The Government charged all defendants with conspiracy under 18 U.S.C. § 371, and with violations of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1961 et seq. The Government charged defendant Perkins with separate counts of bribery, 18 U.S.C. § 201(b), offering gratuities, 18 U.S.C. § 201(f), wire fraud, 18 U.S.C. § 1343, and filing false claims, 18 U.S.C. § 287. The Government charged defendant Osser with accepting gratuities, 18 U.S.C. § 201(g), and acting, as a government official, upon a matter in which a contractor with whom he was negotiating future employment had a financial interest, 18 U.S.C. § 208(a).

 A jury trial in this case began May 9, 1983. At the close of the Government's case, I granted a motion for acquittal in favor of Rose Morris, under Federal Rule of Criminal Procedure 29, as to the conspiracy and RICO counts of the indictment (Counts 1 and 2) (N.T. 12-260). On June 6, 1983, the jury returned a verdict of "guilty" as to all defendants. Defendant Perkins was found guilty of the conspiracy and RICO counts, and in addition was convicted of two counts of bribery (Counts 3 and 5), five counts of offering gratuities (Counts 19, 22, 24, 26 and 28), three counts of wire fraud (Counts 30, 31 and 32), and nine counts of filing false, fictitious or fraudulent claims (Counts 33-39, 41 and 42). Perkins was acquitted on five counts of offering gratuities (Counts 9, 11, 13, 15 and 17). Defendant Osser was found guilty of conspiracy, of accepting gratuities (Count 18), and of participating personally and substantially as a government officer in advising an entity with whom he was negotiating future employment (Count 20). Osser was acquitted of the RICO charge (Count 2), and of five charges of accepting gratuities (Counts 8, 10, 12, 14 and 16). Defendant Morris was found guilty of five counts of accepting gratuities (Counts 21, 23, 25, 27 and 29).

 Each of these defendants seeks post trial relief. I will deny all of these motions for the reasons set forth below.

 I.

 Sidney Perkins

 Perkins has filed two motions with this court: a motion for arrest of judgment as to Count 2 of the indictment (RICO) or in the alternative for judgment of acquittal as to Count 2; and a motion for a new trial as to the entire indictment or in the alternative as to Count 2.

 The basis for the first motion is that the indictment's description of the "enterprise" here, the corporations controlled by Perkins, does not conform to the statutory definition of enterprise found in 18 U.S.C. § 1961(4).

 Perkins argues that a group of corporations is not included within the section 1961(4) enterprise definition, and that the Government therefore did not prove the existence of a RICO enterprise. Section 1961(4) provides:

 
"Enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.

 Perkins' argument is not persuasive, for two reasons. First, there is no reason to believe that Congress intended to restrict the category of entities that may constitute RICO enterprises to only those listed in the statute. A more literal reading of the statute suggests that the statutory listing is non-exhaustive, and that by use of the words "Enterprise includes," Congress intended the statutory language to be interpreted broadly. The Court of Appeals has recognized the non-exclusive nature of the statutory listing. See United States v. Aimone, 715 F.2d 822, 828 (3d Cir. 1983) (group of individuals and single corporation may together constitute a RICO enterprise).

 In addition, the Second Circuit Court of Appeals has explicitly held that an interpretation of section 1961(4) that would exclude a group of corporations from the enterprise definition would "make nonsense of the statute," United States v. Huber, 603 F.2d 387, 394 (2d Cir. 1979), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980), especially in light of Congress' mandate that RICO provisions shall be liberally construed to effectuate the statute's remedial purposes. Id. Judge Feinberg's reasoning in Huber is persuasive. See also United States v. Aimone, 715 F.2d at 828 (citing Huber with approval).

 Perkins' motion for a new trial also relies upon a definitional section of the RICO statute. Perkins was convicted of five counts of offering gratuities to public officials in consideration of services performed, in violation of 18 U.S.C. § 201(f). Perkins argues that violations of section 201(f) should not be considered predicate offenses for purposes of the RICO statute.

 In Section 1961(1)(B), Congress has listed 18 U.S.C. § 201 as a predicate RICO offense, and following the section 201 listing is the parenthetical phrase "(relating to bribery)". Defendant argues, first, that there is a meaningful distinction between offering bribes (§ 201[b]) and offering gratuities (§ 201[f]); and second, that by its use of the phrase "(relating to bribery)," Congress intended that the RICO statute cover only section 201(b) violations.

 This argument is without merit. Following each of the twenty sections of Title 18 listed in section 1961(1)(B) which may be used as predicate RICO offenses, there is a parenthetical phrase briefly describing the criminal activity covered by the statute, usually in the form of a summary of the statute's title. None of these parenthetical phrases are used to limit the reach or to discriminate among parts of the statutes they describe. The parentheticals are only "visual aids," designed to guide the reader through what would otherwise be a litany of numbers.

 It is true that under federal law the offenses of bribery and gratuities are not similar in all respects; bribery requires proof of a "quid pro quo". *fn1" State law bribery, however, defined as a predicate RICO offense in 18 U.S.C. § 1961(1)(A), includes any state statute covering "conduct which is intended, at least by the alleged briber, as an assault on the integrity of a public office or an official action." United States v. Forsythe, 560 F.2d 1127, 1137 n.23 (3d Cir. 1977), citing United States v. Dansker, 537 F.2d 40, 48 (3d Cir. 1976). The five section 201(f) counts allege that Perkins funneled cash to Morris and gave airline tickets to Osser "for and because of official acts performed and to be performed" by them. There is no basis for distinguishing between federal and state law offenses encompassed by the general bribery category, and the section 201(f) counts here clearly fall within the Forsythe and Dansker definitions of RICO bribery.

 Even if there were a valid reason to distinguish between sections 201(b) and 201(f) for purposes of RICO, however, the RICO count against Perkins would stand. This is true by virtue of the fact that Perkins was also convicted on two counts of section 201(b) bribery and three counts of section 1343 ...


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