*1 permission the Com- only with the but his Services
missioner Correctional appellants’ coun- (Letter from
designee.”
sel, 28, 1976). April we are not unmindful
While safety for concern a valve
plaintiffs’ capable
emergency circumstances modification,
аbuse, suggested we think re exceptions for at a responsibility
fixing Department, is conso
sponsible level of the Due standards of the with the flexible
nant may fur Plaintiffs seek
Process Clause.3 experience indicates
ther relief if being found
“emergency circumstances” unexceptional cases.
Accordingly, appealed the order from 1(f) paragraph
modified deletion following: 2 the adding paragraph situations, emergency
“In unusual or may be extended
seven-day requirement permission of the Com- only
but with the his Services or
missioner Correctional
designee.”
Affirmed as modified. America, Appellant, STATES
UNITED Feets, ALTESE, Frankie a/k/a
Frank al., Appellees.
et 76-1008. Docket No. Y., Atty., D. Trager, E. N. David G. U. S. Appeals, Court Barlow, Margolis, Sp. Attys., Fred F. David Circuit. Second Y., Baccus-Lobel, Brooklyn, Shirley Rob- N. 15, 1976. April Argued Justice, Plaxico, Dept, Attys., H. ert C., Wash., appellant. for July D. Decided Jan. Brill, Denied City, appel- Certiorari for New York Maurice Annarumo. lee Salvatоre Goldstein, City, for
Wild
New York
&
Napoli.
appellee
mistakenly
prior
“ordinarily”
prior
de-
to a
draw
our
at least
hours
3. Plaintiffs
Warne,
hearing.
indictment.”
language
If the
of Title IX is
found
explicit we hold it to
we
to be so
as
be and
Language
Act:
1.
obliged
language
construe the
of
para-
that each
the four
We first note
IX, we
the
result.
Title
come out with
same
begins
with the all
graphs
Section
As this Circuit held in United States
phrase: “It shall
unlawful for
inclusive
Parness,
(1974)5
439 fn. 12
F.2d
”
received
any person
.
. who has
.
denied,
cert.
U.S.
any pattern
from
any income derived
(1974),
obliged
we are
L.Ed.2d
to con
etc.,
racketeering activity,
any part
to use
Indeed,
liberally.
the Act
Congress
strue
acquisition
“any
the
such income in
in the
itself:
declared
Act
enterprise
in .
engaged
purpose of this Act
It is the
to seek
foreign
(emphasis supplied).
commerce.”
organized
crime in the
erаdication
addition,
“any”
explicit.
The word
is
we
strengthening
legal
note that
in
in
Section 1961
the evidence-gathering process,
in
tools
defining
“person”
the words
and “enter-
establishing
penal prohibitions,
new
again
“any”.
the word
In the
prise”
uses
by providing
enhanced sanctions and
light
repetition
of the continued
with
new remedies to deal
the unlawful
“any”
say
reading
we cannot
that “a
word
engaged
in organized
activities
those
a
in-
Congressional
the statute” evinces
crime. 84 Stat.
illegitimate
to eliminate
businesses
tent
penal
contrary
prohibitions,
new
of the Act.
These
enhanced
orbit
On
sanctions, and
obliged
say
clearly
that Title
new remedies
extend
we find ourselves
clear,
says
precise
illegitimate
in
as
a
entirety
IX in its
to an
well as
one;
unambiguous
language
the Act
use
to read
otherwise
—the
“any”4
loop-
that are
make
since it
enterprises
word
does not
sense
leaves
—that
imprisonment)
riod of
after the commission
rate is at
where
usurious
least twice the
prior
activity;
of a
act of
rate;
.
enforceable
(6)
(A) in-
debt” means a debt
“unlawful
“Any” is defined in Webster’s
Interna-
New
activity
gambling
curred
or contracted
Edition,
Dictionary, Second
as follows:
tional
which
was in violation of the law of
States,
“Indicating
person,
etc.,
thing,
as
selected
political
a State or
subdivision
choice,
thereof,
or limitation
with
without restriction
under
or which
unenforceable
part
implication
everyone
oрen
State or Federal law whole or in
as to
to selec-
principal
all,
because of the laws re-
exception;
or interest
taken
without
distributive-
tion
lating
usury,
(B)
which was incurred
every;
especially
ly;
used
assertions
gambling
with the business of
connection
scope.”
emphasis on unlimited
States,
law of
the United
violation of
thereof,
political subdivision
or the
State or
“enterprise”
word
was held that the
It
money
lending
thing
value
or a
business of
foreign and domestic.
included both
Act
law,
Federal
at a rate usurious
State or
1961(4),necessarily
Section
illegitimate
escape
business to
at the core of
hole for
us,
controversy
before
coverage.
yet curiously
from the majority’s opinion,
omitted
defines
note that
three other Circuits have
We
“any individual,
partner-
result.6
reached this same
ship, corporation, association,
legal
or other
1974)
(7th
F.2d 1351
cert.
Cappetto, 502
Cir.
entity,
union
group
of individu-
denied,
in fact although
als assoсiated
legal
not a
(1975); United
v. Cam
L.Ed.2d 395
entity.” While the concluding language of
(9th
1975),
such mandate
lan-
nevertheless,
duty
feel
bound to examine
guage
legislative history
or the
of Title IX
legislative history
Congres
to ascertain
1970,
Crime Control Act of
statute,
sional intent.
In expounding a
we
922,
84 Stat.
941-948.
guided by
single
must not be
sentence or
majority places great
Rather,
reliance on the word therein.
we must look to the
precedes
“any”
“enterprise”
word
provisions of
may
the whole law so
we
that
significance
1962. The
U.S.C.
this
give
legislative
§
effect
to the
will. Phil
escapes
“Enterprise”
me.
707, 713,
word
defined
Glodgett,
brook
U.S.
If,
fact,
1961(4).
in 18 U.S.C.
that
(1975).
There was hint a case that held L.Ed.2d involved, encompassed Loading Pronto Un term loading Company, corporations. was not a domestic foreign as well as commercial Neither concern. was there in its contention To bolster any language suggest the Ninth illegal gambling business tended inсlude would upheld have the conviction “enterprise”, definition es within the regardless legitimacy of the enter to the Com Cappetto court turned Senate *7 prise. Con Report mittee on the however, doing, it inadvert trol In so Act. Cappetto, In United 502 F.2d language relating to ently relied on 1351, 1974), statute). lan quoted (the gambling L.Ed.2d 395 be never to guage clearly was (1975), the Seventh held Circuit that applied 1961 or 1962. United applied gambling enterprises, to legitimate §§ 60; Moeller, Com Quite suprа, from the or not. aside fact Business, civil, ment, Legitimate Cappetto criminal, was Infiltration action and, therefore, bring did not play supra, into at 202-203. majority’s opinion. 1961(4).
4. See footnote 6 of See Com- cal definition contained ment, Organized Crime and the Infiltration comprehend I find it somewhat difficult Legitimate for “Crim- Civil Remedies Business: (c) (b) conjure up subsections can how Activity’’, 201-202 U.Pa.L.Rev. inal meaning different than subsec- (1975). (a) derived tion since both are from the identi-
Ill pronouncements on recent The most PERMA & DEVELOP RESEARCH the Fifth come from Cirсuit. scope of § MENT, Plaintiff-Appellee, Hawes, 529 F.2d Appellant, Morris, 1976); United States (5th Cir. 1976). Hawes (5th Cir. COMPANY, Defendant-Ap The SINGER Cappetto holding follows unquestionably pellant, Appellee. legitimate more than means enterprise 75-7362, Dockets 75-7405. Nos. noting, worth neverthe- It is businesses. Hawes, at issue in enterprise less, Appeals, States Court Co., engaged Distributing was Peach State Circuit. Second manufacture, sale, repair legitimate Argued April penny arcade jukeboxes and leasing of 1, 1976. July Decided illegal gam- its addition to amusements 29,1976. Denied Nov. Certiorari Clearly, at 476. operations. bling therefore, the ambit of those fell within it trying was to com- activities wit, utilization of a
bat, front for activi- as a however, Morris, the Fifth Circuit
ty. applied expansive further
went encompass an in- enterprise
reading of players “associated in of card group
formal participating purpose sole for the
fact” designed games to defraud card rigged Nevada. 532 visitors to
unsuspecting therefore, Concededly, the Fifth
at 442. prohibiting regards 1962 as now long as the
racketeering activity per se so can found. effect on commerce
requisite Congress never intend- confident that
I am such a result. reasons, I would preceding all of the
For in line behind the Fifth fall
decline and would affirm Chief Circuits6
Seventh counts one dismissal of
Judge Mishler’s indictment.
two *8 indicated, expressed previously I do not believe that the Ninth has to date As
views matter at issue. on the
