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UNITED STATES v. GALATI

May 18, 1994

UNITED STATES OF AMERICA
v.
RONALD GALATI



The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 AND NOW, this 18th day of May, 1994, upon consideration of Defendant Ronald L. Galati's Pre-Trial Motion to Dismiss RICO Counts and the government's response, it is hereby ORDERED that the defendant's Motion is DENIED.

 I. BACKGROUND

 Count 1 of the instant indictment (the "Indictment") charges defendant Ronald Galati with violating 18 U.S.C. § 1962(c), a subsection of the Racketeer Influenced and Corrupt Organizations ("RICO") chapter. 18 U.S.C. § 1961, et seq. Count 55 of the Indictment provides a corresponding forfeiture charge. Counts 1 and 55 are the sole RICO Counts in the Indictment. *fn1" Section 1962(c) prohibits any "person" employed by or associated with any "enterprise" from conducting or participating in the "conduct of such enterprise's affairs through a pattern of racketeering activity or a collection of unlawful debt." 18 U.S.C. § 1962(c). For RICO purposes a person is defined as "any individual or entity capable of holding a legal or beneficial interest in property." 18 U.S.C. § 1961(3). A RICO "enterprise" may be "any individual partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). For example, an enterprise may be the association of a corporation and a group of individuals. See e.g., Glessner v. Kenny, 952 F.2d 702, 711-12 (3d Cir. 1991). The term "enterprise" encompasses both legitimate and illegitimate enterprises. United States v. Turkette, 452 U.S. 576, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). However, the "pattern of racketeering activity" may not itself be the enterprise. Id. at 583. That is, the enterprise must have an existence beyond that which is required to carry out the pattern of racketeering. Id.

 With respect to the enterprise charged in this matter, Count 1 of the Indictment states:

 
1. At times relevant to this indictment, defendant RONALD L. GALATI was the owner and operator of Ron Galati Auto Body, Incorporated ("Galati Auto Body") located at 1118 and 1120-1124 South 12th Street, Philadelphia. Pennsylvania.
 
2. At times relevant to this indictment, Galati Auto Body was engaged in the business of providing auto body repairs, including but not limited to, auto body work and painting.
 
3. In or about September, 1992, defendant RONALD L. GALATI transferred the business of Galati Auto Body at which time the name of the business was changed from Galati Auto Body to Drive-In Auto Body, Incorporated (Drive-In Auto Body) and the business continued to operate at 1120-1124 South 12th Street, Philadelphia, Pennsylvania and the adjacent property at 1118 South 12th Street, Philadelphia, Pennsylvania.
 
4. At times relevant to this indictment, the duties and responsibilities of defendant RONALD L. GALATI, doing business as Galati Auto Body and Drive-In Auto Body, included communicating with various insurance appraisers regarding estimates for vandalized and damaged vehicles and submitting invoices for auto body repairs and painting to insurance companies for payment.
 
THE ENTERPRISE
 
5. At all times relevant to this indictment, the auto body business located at 1118 and 1120-1124 South 12th Street, Philadelphia, Pennsylvania, commonly known as Galati Auto Body and Drive-In Auto Body, constituted an enterprise as that term is defined in Title 18, United States Code, Section 1961(4), which was engaged in, and the activities of which affected, interstate commerce.

 Indictment pages 2, 3, PP 1-5 (emphasis original).

 Defendant Galati's instant motion seeks dismissal of Counts 1 and 55 on the ground that the existence of a RICO enterprise is an essential element of the crime charged and that the Indictment, by its terms, precludes the government from proving that the "business located at 1118 and 1120-1124 South 12th Street" (the "12th Street Business") was a RICO enterprise. Def's. Mem. pp. 7-8. The defendant specifically contends:

 
1. The "person" charged with violating § 1962(c) must be distinct from the alleged "enterprise". Defendant Galati, the person charged, and the enterprise, the 12th Street Business, are not sufficiently distinct as required by Lorenz v. ...

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