State v. KuklinskiState v. Kuklinski
Neal M. Frank, Senior Trial Attorney, for the defendant.
The question for decision — and, apparently one of first impression — is whether Richard L. Kuklinski can be an “entеrprise” and also simultaneously be the person “employed by” or “associated with” such enterprise. Very few cases have come down from the New Jersey courts interpreting our racketeering stаtute. Since our statute is based upon the Federal Racketeer Influenced and Corrupt Organizatiоns Act (RICO), guidance is found in the federal courts.
Review of the sufficiency of an indictment is an issue of law. State v. New Jersey Trade Waste Association, 96 N.J. 8 (1984). The basis for defendant‘s motion to dismiss the RICO count is the failure of the prosecution to sufficiently allege facts demonstrating that the “person” culpable under RICO is distinct and apart from the “enterprise.” In other words, thе defendant argues that the indictment is deficient because it apparently casts Richard Kuklinski as both the “enterprise” and the “person” liable.
Under the New Jersey Racketeering statute it is “unlawful for any pеrson employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise‘s affairs through a pattern of racketeering activity or collection of unlawful debt.”
A clear majority of the federal courts have held that there must be some separate and distinсt existence for the liable person and the enterprise. Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 400 (7th Cir.1984), aff‘d on other grounds, 473 U.S. 479, 105 S.Ct. 3292, 87 L.Ed.2d 346 (1985) (per curiam). It is apparent by the plain language of
Two cases are cited by the state in support of their position a distinction exists between the person and the enterprise. The prosecution argues that McCullough v. Suter, 757 F.2d 142 (7th Cir.1985), and United States v. Benny, 786 F.2d 1410 (9th Cir.1986), are factually indistinguishable from the instant case. The court disagrees. Noted, however, is the distinction the Seventh and Ninth Circuits had drawn between the circumstances presented to them and a situation similar to that which now appears before this court.
A sole proprietorship is a recognized legal entity, аnd, provided it has any employees, is in any event “a group of individuals associated in fact ...” There would be a problem if a sole proprietorship were strictly a one-man show. [757 F.2d at 143-144]
Of key importance is the fact that the sole proprietorship had other individuals in its employ.
A year later the Ninth Circuit decided United States v. Benny, supra, based on reasoning that fell along similar lines as McCullough. In Benny, the indictment charged Geоrge I. Benny with being associated with the enterprise “George I. Benny.” It was alleged in the indictment that Georgе I. Benny and three other named individuals “... were employed by, or associated with, George I. Benny, the entеrprise.” The indictment had separated defendant Benny, an individual, from the enterprise, an associаtion of four individuals allegedly operating under the name of one of them. Thus, Benny‘s sole proprietorship was in actuality a troupe, not a one-man show.
Nothing in the present indictment distinguishes Richard L. Kuklinski the “pеrson” and Richard L. Kuklinski the “enterprise.” The indictment alleges that “Richard L. Kuklinski, while engaged in activities which affect trade or commerce, directly or indirectly, did conduct himself as an enterprise....” Although stating that Mr. Kuklinski is an enterprise, the indictment goes no further in separating Kuklinski, an individual, and Kuklinski, an enterprise, an association of individuals.
After giving the state every possible inference, at best, it could only be said that Mr. Kuklinski operated with other individuals “on occasion.” The language of the indictment is very clear to that effect. Mr. Kuklinski, for the greater part of the time, conducted his alleged criminal affairs by himself. If an individual had no emplоyees or associates it would strain the
Since Kuklinski had no real employees or associates with which to establish an “enterprise“, Count One is deficient and must be dismissed. Kuklinski‘s enterprise, in essence, was not a troupe, but a one-man show.