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UNITED STATES v. WILSON

December 12, 1989

UNITED STATES of America
v.
John WILSON, et al.



The opinion of the court was delivered by: NEWCOMER

MEMORANDUM

Before the court is the government's motion to mold the forfeiture verdict and defendants' responses to the motion. For the reasons that follow, the court will grant the motion.

I. Background

 This multi-count criminal case related to conduct that occurred during the period January 1980 to February 1984. During that time period, the defendants were narcotics officers with the Philadelphia Police Department in a unit known as "5 Squad." Defendant John Wilson was the lieutenant in the unit; defendant Ronald Giongo was the sergeant; and defendants David Grove, James Cattalo, Richard Jumper, and Francis Hilt were police officers assigned to 5 Squad. Defendants Jumper and Hilt were acquitted on all counts and charges. Each of the other four defendants *fn1" were convicted of conspiracy to commit and the actual commission of racketeering activity during the 1980-1984 time period while they were members of 5 Squad, in violation of 18 U.S.C. § 1962(c) (RICO) and § 1962(d) (RICO conspiracy).

 The RICO conspiracy count charged the defendants with conspiring to conduct and participate in the affairs of the Philadelphia Police Department (the enterprise) through a pattern of racketeering activity, which consisted of acts of bribery, theft by extortion, robbery, Hobbs Act robbery and extortion, and possession and distribution of drugs. The indictment charged that these acts were committed by the defendants generally while on 5 Squad searches on which they stole money and drugs, sometimes in return for not arresting the person or in exchange for reducing the charges.

 As found by the jury, the RICO substantive charge on which defendants were convicted consisted of twenty-two separate predicate racketeering acts including robbery during various searches, distribution of drugs stolen during searches, and receipt of payments from persons known to be drug dealers. *fn2"

 In presenting its case, the government called approximately sixty witnesses. The two primary witnesses were Leo Ryan and Charles Hund, both former police officers who were in 5 Squad during portions of the indictment period 1980-1984. *fn3" Ryan and Hund both testified about numerous searches they participated in while on 5 Squad, on which money and or drugs were taken by the 5 Squad officers and never turned in. The government presented evidence on over sixty searches or incidents, each of which generally consisted of testimony from either Ryan or Hund and or the victim(s) of the search or incident.

 II. RICO Forfeiture Verdict

 Count Two of the indictment subjected the defendants to forfeiture under 18 U.S.C. § 1963 for monies allegedly obtained from the racketeering activity committed in violation of 18 U.S.C. § 1962. In response to questions on a special verdict form, *fn4" the jury indicated that: (1) the "total amount of gross proceeds to the enterprise that should be forfeited to the United States pursuant to the provisions of the RICO statute" was $ 180,700; and (2) defendants Wilson, Grove, and Cattalo should forfeit $ 5,000 each, and defendant Giongo should forfeit $ 0. See Appendix A (summary of forfeiture verdict form). The government now asks the court to mold the forfeiture verdict and enter judgment finding each of the four convicted defendants liable, jointly and severally, for the gross amount of racketeering proceeds of $ 180,700.

 III. Discussion

 After conviction of a person under 18 U.S.C. § 1962, the court must enter a judgment of forfeiture to the United States of the property derived from racketeering activity. 18 U.S.C. § 1963(e). Forfeiture is mandatory. United States v. Kravitz, 738 F.2d 102, 104 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S. Ct. 1752, 84 L. Ed. 2d 816 (1985). Taking the view most favorable to the government, United States v. Ofchinick, 883 F.2d 1172, 1177 (3d Cir.1989), substantial evidence existed in this case to support the jury's finding that monies in the amount of $ 180,700 were acquired by the defendants, which represented primarily monies confiscated or stolen by the defendants during official police searches that were kept by the defendants and never turned in for evidence.

 Two issues are now before the court: (1) the amount of forfeiture to be imposed on the defendants; and (2) whether the defendants are jointly and severally liable on the forfeiture verdict.

 A. Amount of Forfeiture

 In the instant case, the jury's special verdict indicated a total amount of gross proceeds of the enterprise ($ 180,700) and also individual amounts to be forfeited by each defendant ($ 5,000 for each defendant, except $ 0 for defendant Giongo). See Appendix A, Questions 3 and 4. The government now argues that the jury's individual apportionment by defendant in Question 4 is irrelevant as a matter of law, because once the gross racketeering ...


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