United States v. William Aubrey Thompson, Thomas Edward Sisk and Charles Frederick Taylor

identity a market plaintiff infer that single Baxter Lane countered source. evidence of

this inference inconclusive presented mark. It plaintiffs

sales without of the un quantity

no evidence of the of minor

marked sales and weak evidence name.3 In the third-party’s

sales under a its extensive sales under plaintiff’s

face of mark,

own evidence cannot overcome distinctiveness; finding jury’s contrary to Baxter

jury finding, though evidence, not without

Lane’s rather weak in the evidence as a

persuasive support

whole. We therefore affirm.

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, THOMPSON, Aubrey Thomas

William Frederick

Edward Sisk and Charles

Taylor, Defendants-Appellants. 81-5176,

Nos. 81-5490 and 81-5495. Appeals,

United States Court

Sixth Circuit.

Argued 1982. April Aug.

Decided 6,1982.

Certiorari Denied Dec.

See 103 S.Ct. 494. ently fly fly use the swatters for local wanted to swatters with the 3. Plaintiff sold the latter advertising. marking “Tox-A-Wick” on the handle. Tox-A- appar- Wick business that was an exterminator EDWARDS, Jr.,

GEORGE CLIFTON Judge. Chief was on April This ease heard en banc hearing preceded 1982. The en banc was by a panel consisting decision of of three thoughtful judges experienced and of this court who had reversed vacated condi- pleas tional of guilty by tendered the three this panel’s defendants in case. The reason- ing was Attorney’s indictment of these three individuals under Racketeering Influenced and Corrupt statute, Organizations 18 U.S.C. 1961 et seq. (1976), (popularly RICO), as known was fatally defective the fact that it alleged referred to in the RICO statute was “The Office Governor The panel State Tennessee.” held provisions “RICO’s remedial show that government appropriate entities are neither ” nor ‘enterprises.’ intended RICO U. v.S. Thompson, 669 F.2d 1982). presented

Thus issue on ap peal is: appellants’ whether convictions and voluntary pleas sentences on of guilty must < because, be invalidated this court claim, appellants the indictment under the illegally alleged RICO statute that “The Office of Governor” of the State Tennes see “enterprise”'which was the is an inte gral part RICO statute? Martin, Henry Martin, A. Haile & W. question negative. We answer this in the Blackburn, Gary Alagia, Barnett & Robert 1) We do so on basis of the breadth of Watson, Tenn., Nashville, C. for defend- statutory 2) language, RICO’s the unanimi- ants-appellants. ty judicial precedent precise point on this Brown, Joe Atty., Cohen, B. U. S. William circuits, in other all of which eases the Tenn., Asst. Atty., Nashville, U. S. William Court refused Chief, C. Bryson, Section, Appellate Crim. review, 3) legislative history Div., Dept, Justice, Washington, C., D. the RICO statute. for plaintiff-appellee. also, however, question

We EDWARDS, Before Judge, Chief employment and wisdom of continued of this LIVELY, ENGEL, KEITH, BROWN,* form of indictment. The of KENNEDY, JONES, MARTIN, CONTIE allows does not RICO statute for but com KRUPANSKY, Judges.** pel Circuit use of this device. We believe that * ** Bailey Merritt, Judge Judge partic- Circuit Brown retired from Circuit Gilbert S. did not active 16, 1982, ipate designated Judge service on June became sat a Senior since he as a District Judge. proceedings. Circuit in the District Court (or specific preceding acts related in the identifying illegal “The Office of Governor”1 Appellants deny par- for that matter other sentence. do not their office) “enterprise” under un- ticipation illegality as the RICO in or the of such con- disrupt comity in feder- necessarily tends they deny duct. Nor do that such activities relationships and as we will show al-state fall within the crimes defined opinion, pro- later in this the statute itself They statute. do contend readily unobjectionable available sub- vides vigor that indictment’s identifica- with language. stitute tion of “The Office of Governor” as the “enterprise” referred to in RICO is both a THE POSTURE OF THIS CASE misinterpretation Congressional intent the District by This case was heard Court invasion of state and an unconstitutional and decided without trial because the three authority. pled guilty. pleas

defendants Their to one lengthy count of to Rule the indictment led I. CONSTRUCTION STATUTORY proceedings Judge 11 before the District recently This court has dealt with anoth- designed acquaintance defendants’ test upon er attack statute and in its RICO of the indictment and allegations opinion principles has set forth the broad The sen- pleas. the voluntariness of their (and here) statutory construction there in- which were entered were in accord- tences volved. plea agreement. ance with the terms of the follows, quote In what we from this appeal agreement This is taken under an Sutton, opinion in v. court’s United States involving the the defendants prosecution, (6th denied, 642 F.2d 1001 Cir. cert. and the court that the sentences would 912, 3144, 453 legality become final until and unless the following The material describes single the indictment issue as to the the breadth and inclusiveness RICO and af- presented here had been tested adopted by Congress statute as as we de firmed. points, scribed it in At various in Sutton. italics, interpolate we so as to show the (AS THE ALLEGED FACTS language application statutory of this ADMITTED) AND present our case: As consequence, a we recite facts convicted of appellants “Each of the was validity from the indictment —the factual ‘enterprise’ af- conducting the affairs of of which each defendant admitted under through pat- fecting interstate commerce oath in open court. activity, in violation of tern of alleged The indictment these three 1962(c) (1976), conspir- 18 and of U.S.C. § (and appellants two other defendants not offense, acy in violation of to commit appeal) conspired together involved in this 1962(d) (1976). jury The re- 18 U.S.C. § (Count I)2 accept to solicit bribes for guilty appel- verdicts as to the nine turned influencing granting pardons lants on 308 counts. paroles delays or denials of extradition persons who had been convicted of or charged with crime. Count II3 detailed the “C. origin Attorney’s L.Ed.2d 246 case was

1. The of the U. S. choice of Sutton first may argued this form of indictment this case have before this court December 1978. controversy been the in this circuit over wheth- was dated March The indictment this case required er or not the was 1979. controversy “legitimate.” be now This has by v. been resolved in this circuit Taylor pled guilty Appellants to the 2. Sisk and Sutton, 1980), cert. 642 F.2d 1001 conspiracy count. 453 U.S. 69 L.Ed.2d S.Ct. and, course, (1981), importantly, more Thompson pled guilty Appellant to the sub- Supreme the U. S. in United States v. Court stantive count. Turkette, 452 U.S. enterprise the meaning “If of a criminal statute is lawful or unlawful we [or interpolate ‘public adopted unambigu- might private’]. is clear and or ous, then there is no need for the courts to itself, “Congress however, recognized interpretation by legisla- turn to means of meaning of crit- was history tive or of statutory rules construc- importance ical statute and hence Very recently tion. in a Court statutory defini- provided supplementary us, opinion unanimous ‘It is reminded begins tion. with defini- U.S.C. § ‘ elementary that starting point ev- “[t]he tions, and the fourth one reads: “enter- ery case involving construction of a statute individual, prise” includes any partnership, Chip Stamps itself.” Blue association, corporation, legal or other enti- Stores, Drug Manor [95 ty, group union of individuals 1917, 1935, (1975) 44 L.Ed.2d although legal 539] associated in fact enti- ’ (Powell J., concurring); Greyhound see .... ty; (Emphasis added.) It should be Inc., Corp. Stages, Mt. Hood definition, noted that in this word ‘en- 2375, 330 S.Ct. modifiers, L.Ed.2d terprise’ any is used without [98 and 239] (1978); Industries, Green, Santa Fe v. employed Inc. same throughout word is Title without (except, U.S. 51 IX modifiers as we will [97 (1977).’ point below, L.Ed.2d out ‘any’). Southeastern Commu- the word 480] Davis, College nity “Obviously Congress have known would 2361, 2366, 60 L.Ed.2d 980 illegal enterprise how to an or characterize legal IX, enterprise a had it seen fit to do so. “Title which of these section each Obviously Congress would also have charged violating, pro- defendants is [ how enter- private known to characterize a applicable vides in part: or a prise public had it seen fit to person ‘It shall be for any unlawful single so. Its choice of the word ‘enter- ] do employed by any or associated with en- prise’ and its its actual definition of seems in, terprise engaged or the activities of major to us of importance. affect, foreign which interstate or com- merce, directly to conduct or participate, “Over and above fact that indirectly, or in the conduct of en- such ‘enterprise’ used word without modifi- terprise’s through pattern affairs a ers, clearly its both legal definition includes activity or of un- collection ‘any group entities and . .. of individuals lawful debt.’ although legal in associated fact enti- ty-’ 1962(c) (1976). U.S.C. § “Further, under second section previously have “We noted that dis- Activities,’ statute entitled ‘Prohibited sub- pute meaning case concerns the (b) (c), Congress employed sections ‘enterprise.’ the term a com- Enterprise is ‘enterprise,’ word modified word which, English mon word as indicated in tl\e thus, (c) ‘It ‘any’; provides: shall subsection Third Webster’s New International Dic- person be unlawful for any employed tionary or Unabridged, means: engaged in, any enterprise associated with plan a design ‘a. or for a or venture affect, or the activities of interstate undertaking foreign partici- or commerce conduct or venture, ‘b. undertaking, project; directly pate, indirectly, or in the conduct of esp: undertaking difficult, enterprise’s through pattern such a affairs complicated, or strong element racketeering activity or of un- collection risk ‘any’ lawful debt.’ use of the term The a unit organization ‘c. of economic or helps ‘enterprise’ before make clear that activity ‘enterprise’ encompassing in an all used any ‘d. systematic purposeful activity certainly legal This both sense. includes or type activity.’ illegal enterprises. same breadth [ absolutely (but “These definitions are all neu- may compel) be said to for allow question tral on the particular government of whether a identification of a office as an regard In this “We do not believe ‘enterprise.’] Second Cir- there is Altese, cuit has said: ambiguity to be found in the use of the light repetition ‘In the of the continued ‘enterprise’ word in 18 U.S.C. 1961 and §§ of the word we cannot “a “any” say that 1962. As a consequence, we see no occasion reading of the statute” evinces a Con- employment for of the well known canon gressional intent illegitimate to eliminate States, stated in Rewis v. United businesses from the orbit of the Act. 808, 812, 1056, 1059, [Likewise, nothing interpretation in this (1971), that ‘ambiguity concerning the am- Congressional demonstrates a intent bit of criminal statutes should be resolved governments exclude state and local lenity.’ favor of particularly This is em- scope contrary On the act.] phasized by the Congress provided fact that obliged we find ourselves say that Ti- specifically (the that Title IX Racketeer clear, entirety says tle IX in its precise Corrupt Organizations Act), Influenced and unambiguous language use of —the ‘Be liberally construed to effectuate its re- “any”4 enterprises the word all —that Pub.L.No.91-452, purposes.’ medial Title through pattern are conducted 904(a), IX 84 Stat. 947 racketeering activity or collection of un- lawful debts fall within the interdiction “Nor do we believe that there is of the Act.’ conflict, overlapping, ambiguity created Altese, United States v. 542 F.2d 106 by the employment statute’s of the terms (2d cert. ‘enterprise’ ‘pattern of racketeering ac- 50 L.Ed.2d 750 tivity.’ Congress itself defined both of these terms simple and understandable “It seems clear that an en- language: gaged affecting in or interstate commerce ‘(4) “enterprise” any includes individu- subject becomes to the criminal sanctions of al, partnership, corporation, association, when, when, Title IX only it is conduct- legal or other entity, any union or ed ‘through pattern a activ- group of individuals associated in fact ity.’ In still longer another and section of although legal entity; statute, the definition portion of the Con- ‘(5) “pattern of racketeering activity” gress defined the specific crimes which are encompassed in ‘racketeering requires the term ac- at least two acts of racketeering tivity.’ activity, one of which occurred after the chapter effective date and the last “Appellants charged, were as we have years (ex- of which occurred within ten above, noted activity with an and offenses 1962(c) cluding any period imprisonment) which after (d). violated 18 U.S.C. §§ These provide: two sections of a prior commission act of racket-

‘(c) any person It shall be unlawful for eering activity;’ employed by or associated with en- in,

terprise engaged or the activities of 1961(4), (5) U.S.C. §§ affect, foreign interstate or com- “ ‘Enterprise’ in the context of this case merce, to conduct or participate, directly clearly organization or refers to the in which indirectly, the conduct of such en- terprise’s through pattern affairs (and others) joined these nine defendants to racketeering activity or collection of un- organization’s conduct the affairs. [‘Enter- lawful debt. prise’ present in the context of our case ‘(d) It shall any person be unlawful for equally clearly refers to ‘The Office of Gov- conspire to to violate any provi- of the clearly, ernor.’ Just as it on could the facts (a), (b), sions of (c) subsections or of this alleged organization also apply to the con- section.’ (and sisting of these three defendants oth- 1962(c),(d) (1976). 18 U.S.C. §§ ers) engaged conspiracy par- in the to sell

dons, commutations, etc.] “ statute set forth racketeering activity’ ‘Pattern of refers above. In drafting this (named statute, to the by various criminal activities Congress chose which was ” statute) ‘enterprise.’ engaged both clear and Nothing broad. in the statu- tory language employed Congress pro- “4 ‘Any’ is defined in Webster’s New Interna- Attorney hibited the United Dictionary, Edition, tional dicating Second as follows: ‘In- person, etc., drafting this indictment so as to thing, describe as one selected choice, without restriction or limitation of “The Office of Governor of Tennessee” as implication everyone open to selection here involved. Whether he all, exception; distributively; without ery; taken ev- required was to or should have done so is an especially emphasis used in assertions with scope.’ on unlimited entirely different upon matter which we “5 (1) ‘racketeering activity’ (A) any means act subsequently. will comment murder, involving kidnapping, gam or threat panel anomaly apply- stressed the arson, bling, ing chargeable imprisonment robbery, bribery extortion, or deal dangerous drugs, in narcotic or other which is ing RICO’s civil remedies to punishable by under State law and course, presents entities. Of this case no year; (B) any for more than one Moreover, application. such we think that following act which is indictable under of the provisions the Supreme holding of title Court’s Sec Code: (relating bribery), (relat tion 201 section 224 Turkette, States v. 576, 585, ing sports bribery), 471, 472, sections and 473 2524, 2530, (1981) on a (relating counterfeiting), (relating section 659 point dispositive similar here: shipment) to theft from interstate dictable under section 659 is if the act in felonious, section Even if one or more civil reme- (relating pension to embezzlement from might inapplicable particular dies be to a funds), (relating welfare tortionate credit sections 891-894 to ex illegitimate enterprise, this fact would transactions), (re section 1084 lating tion), gambling to the transmission of informa not serve to enterprise concept. limit the (relating fraud), section 1341 to mail sec provided civil remedies for ¡503 (relating fraud), tion 1343 to wire section use when the circumstances so warrant. (relating (relating tions), justice) to obstruction of section 1510 argue It is untenable to their exist- investiga to obstruction of criminal (relating section 1511 to the obstruction of scope pro- ence limits the of the criminal enforcement), (re state or local law section 1951 (footnote omitted). visions lating extortion), commerce, robbery, to interference with (relating racketeering), section 1952 emphasized many We have references (relating transportation section 1953 to interstate Congress made to crimes which primarily or wagering paraphernalia), (relating section 1954 substantially impact upon or make use of payments), to unlawful welfare fund section 1955 governments. units of state or local We (relating businesses), prohibition illegal gambling to the (relating sections 2314 and 2315 Congress’ believe inclusion of such crimes as transportation property), interstate of stolen sec bribery (through or extortion influence on (relating traffic), (C) tions 2421-24 to white slave offices), justice, state or local obstruction of 29, act which is indictable under title United Code, (dealing States section 186 with restric obstruction of state or local law enforce- payments tions on organiza and loans to labor ment, investigation obstruction of criminal tions) 501(c) (relating or section to embezzlement appellants’ argument tends to rebut that funds), (D) any involving union offense jurisdic- intended to assert never bankruptcy fraud, securities, fraud the sale of manufacture, importation, or the felonious re tion over a state activity such as that in- ceiving, concealment, buying, selling, or other present volved in the indictment.5 dealing dangerous wise drugs, punishable States; in narcotic or other under law of the United .... II. THE JUDICIAL PRECEDENT FOR 1961(1) (1976). 18 U.S.C. § This section was THE FORM OF INDICTMENT CHO- subsequent amended to the indictments here. 4 1961(1) (Supp. 1979).” See 18 U.S.C. Ill SEN BY THE U.S. ATTORNEY As a matter of The case law statutory interpretation, already developed which has we readopt interpretation question nationwide on the of identifying of the RICO footnote, bribery involving In this that we have italicized each crime Tennessee law covers likely only individuals, yet, private involve activities of state and local it cannot be de- governments. nied, bribery conception that the common primarily concerns a crime committed panel argued many 5. The of these crimes government officials. necessarily implicate do not government state and local example, officers. For it noted

999 presented to “enter the United unit as the RICO States rejecting appel prise” petition is unanimous6 on for writ Court of certiorari and single appellate lants’ contention in this in each instance certiorari was denied. Dozier, 531, 672 F.2d case. United States v. recognize, course, We (5th 1982); 543 Angelilli, United States v. & n.8 Cir. Supreme Court warns that denial of certio 23, (2d 1981), 30-34 Cir. 660 F.2d rari should be accepted expression as an denied, v. cert. sub nom. Butler United Nonetheless, authority. of its decisional - States, -, 1442, 102 71 U.S. S.Ct. repeated Supreme rejections Court of ef (1982); v. L.Ed.2d 657 United Sutherland on behalf of forts convicted defendants in 1198, States, 1181, 656 F.2d 71 L.Ed.2d 663 separate at least six cases from four circuits (5th denied, - U.S. -, 1981) Cir. cert. to overturn their grounds convictions on denied, (1982), May 102 1451 and cert. S.Ct. urged by appellants identical with that States, - U.S. -, nard v. United 102 certainly this case is of more than passing 1617, (1982); 71 852 United S.Ct. L.Ed.2d interest. Enterprises, v. Lee States Stoller 652 Inc.. 1313, (7th Cir.) (en banc), F.2d circuit, 1316-1319 We should note that this prior to 636, denied, 1082, panel appeal, cert. decision in this 454 102 S.Ct. had also (1981); 70 L.Ed.2d 615 United States v. decided the same issue in accordance with Long, 239, (4th Cir.), 651 F.2d 241 cert. the result of the circuit court cases listed denied, (1981); S.Ct. United States unpublished opinion-— above—albeit an Stratton, 1066, (5th v. 649 F.2d 1074-75 Cir. with somewhat less detailed consideration. Clark, 1981); v. F.2d Durham, (6th United v. States 652 F.2d 59 1259, (8th 1981); 1261-1267 Cir. United 1981) (unpublished opinion). Cir. Altomare, 5, (4th States v. 625 F.2d Cir. In the Durham case this court foreshad- Karas, 1980); 500, United States v. 624 F.2d opinion by saying: owed this (4th denied, 1980), cert. Cir. Irrespective allegation whether a mere 857, (1981); 66 L.Ed.2d 800 County the Davidson Criminal Court Baker, United States v. 617 F.2d 1060-1061 Office constituted the “enter Clerk’s (4th 1980); Bacheler, Cir. United States 1961(4) (1976), prise” under 18 U.S.C. § (3d 1979); 611 F.2d United Cir. sufficient, would be count one of the in Grzywacz, States v. 603 F.2d 685-687 dictment, substantially incorporated by denied, 1979), cert. 446 U.S. two, extensively reference in count sets (1980); 64 L.Ed.2d 788 Unit allege facts in sufficient detail to forth Frumento, ed 563 F.2d purview within (3d 1089-1092Cir. cert. sub nom. clearly alleged Act. The indictment here States, Millhouse v. United predicate illegal undertakings by group (1978); working together. of In individuals Brown, 407, (5th v. States 555 F.2d 415-416 Sutton, United v. 642 F.2d 1001 States denied, 1977), Cir. cert. Seymour sub nom. denied, 1980), 912 (6th Cir. [cert. States, v. United 435 (1981)], 69 L.Ed.2d [101 995] (1978); 55 L.Ed.2d 494 v. United States this court held that there was no statuto Vignola, (E.D. F.Supp. 464 1095-97 ry the Act that requirement under Pa.), mem., (3d aff’d 605 1199 F.2d Cir. legitimate. to “enterprise” referred be 1979), cert. 444 100 (1980).7 Id. at 3. said, having All of we We the above been specifically note that in the six Court above, of Appeals recognize cases that the form of indictment em- underlined sin- gle issue presented ployed approved by in this case was also here has not been Barber, only F.Supp. 7. See also United States v. arguable exception is 476 Mandel, (D.Md.1976), (S.D.W.Va.1979), rev’d F.Supp. 415 184-191 and 997 Sisk, grounds, (M.D.Tenn. on other (4th F.Supp. 591 F.2d 476 1061 1347 Cir. banc, 1979). 1979). rev’d en 602 F.2d subject Court and is of the form of still to review this indictment. But neither

there. any legislative do we find history which suggests disapproval. or infers III. LEGISLATIVE HISTORY From these three sections of opinion this It seems clear to us that those who played language we conclude that plain and the leading roles in the enactment of the meaning of the statute does not exclude thoroughly RICO statute organ- understood identification of a office as a ized impact upon crime’s government enti- enterprise, weight that the of author- McClellan, ties. Senator sponsor chief ity developed unanimously thus far of this bill and chairman of the committee view that an east in this indictment form is it, which drafted said: “To exist and to valid, congressional within intent and President, profits, organized increase its Mr. history legislative that a review of of this crime necessary corrupt has found it contrary legislative statute indicates no in- processes, institutions of our democratic tent. Under these circumstances defend- something society no can tolerate.” voluntary pleas guilty ants’ of must be af- Cong.Rec. Further, said, (1969). he firmed. “For necessary expansion gov- with the hold, however, description We also regulation ernmental of private and busi- “The Office of Governor” of one of the activity, power ness its corrupt given states of the union the “enterprise” re- organized crime greater control over mat- disruptive comity ferred to in RICO is ters affecting everyday life of each cases, federal-state In relations. some such citizen.” Id. point- Senator McClellan also language may needlessly also cast unfair ed out organized crime “in had some upon reflection innocent individuals. localities, corrupt established alliances with- Further, we the probably hold that processes society; our democratic certainly intended and less debatable form police, prosecutors, courts, with the leg- employ Cong.Rec. indictment would be to the words (1970). islatures.” 116 of the statute as underlined below: Senator, Another Murphy, quot- Senator individual, includes ed the conclusion of the President’s Crime association, partnership, corporation, Commission, “Organized crime flourishes group legal entity, other union or only corrupted where it has local officials.” although of individuals associated in fact Cong.Rec. Representative legal entity: not .... St. Germain told the House that “[t]he greatest 1961(4)(1976) added.) danger organized (emphasis crime U.S.C. lies in its provision illegal goods respect, In which could services, penetration but in its of the coun- preferably and we believe should have been try’s legitimate institutions.... One of employed, alleged would have the most up by ominous statistics turned three a “group defendants constituted the President’s Crime Commission in their individual although associated in fact surveys was the paid estimated billion $2 legal entity which made use of the Office of year out each by organized crime public Governor of the of Tennessee” for the State officials in justice and out of the criminal particular racketeering alleged activities system buy immunity from the law.” the indictment. Cong.Rec. 35199-35200 IV. APPELLANTS’ CONSTITUTIONAL We great deduce from the above Con- CLAIM gressional concern organized with crime’s infiltration of or domination of various as- Appellants also seek to overturn pects national, govern- state and ground naming local their convictions on the that We, course, ments. do not assert that the as a enter Office Governor legislative history this that prise demonstrates violates the doctrine of National Congress expressed ever specific approval League Usery, Cities U.S. S.Ct. While we Appel- have doubts that the RICO phrase lants argument this as follows: statute fits within of these three re- present case, quirements, In the it dealing clearly we are fails the first test in the Congress issue of whether can it “regulate” consti- does not the as “States tutionally make the remedies of forfei- States.” ture, dissolution, etc. available ap- to be Appellants us, do not tell and we cannot plied to the Governor’s Office conceive, how the applied RICO statute as State of Tennessee. If ap- RICO can be in this case “regulates” the “States plied to the Governor’s Office of the Rather, the States.” RICO statute regu- Tennessee, State of then sentencing the private lates conduct by imposing criminal court, statutes, under the power has the penalties upon individuals who have com- impose to all of the available sanctions on predicate mitted at least two acts of racket- the ‘enterprise.’ Clearly, Congress can- eering while employed associated with or not have meant for the district courts of an enterprise affecting interstate com- this nation to have ‘power’ to even merce. Criminal activity private activity office, consider governor’s dissolution of a even when it is carried public out in a or forfeiture of the gov- funds under the though forum and even activity can ernor’s office control. only be undertaken by an official’s use of a The first answer appellants’ contention given state power; example, for power regard is that this ease involves no of prevention commutation and of extradi- effort to make use of the remedy civil sec tion governor vested in the by virtue of his tion of the RICO statute in fashion. position. official holding basic League National Cities, supra, is cannot exer congressional Unlike the action dealt

cise power its Commerce doing where so League (unsuccess with National “directly displace would the States’ freedom fully) imposed mandatory minimum federal integral structure operations in areas of standards on employers, State the criminal governmental traditional functions.” 426 provisions of regulate; they RICO do not do at at 2474. Certainly S.Ct. it; not prescribe proscribe conduct but they League National provide Cities does not direct, impact make no mandatory on the state officials with any general immunity enterprise in which RICO’s individual de from the reach of federal legislation. In associated; fendants are employed or in League National a three-prong test was stead, they impose penalties only in the applied. First, there showing must be a event certain criminal activities occur. challenged “regulates” statute appellants’ Thus reliance on National “States as States.” Id. at at S.Ct. League very fails meet the first of the Second, the federal regulations must three essential tests set forth in National address matters that are indisputably at League. tributes of state sovereignty. Id. at Amendment, The Tenth provides: “The Third, S.Ct. at 2471. it must be apparent powers delegated to the United States that the compliance States’ with the federal Constitution, prohibited by nor it to law would directly impair ability their States, are reserved to the re- States integral operations structure in areas of spectively, people.” or to the It does not in traditional functions. Id. at apply its terms to this case. Article Virginia at 2474. Hodel Ass’n, specifically cl. 3 of the U. S. Constitution Mining Surface Reclamation & 264, 287-88, 101 2352, 2365-66, delegates power to the United “To regulate foreign L.Ed.2d 1 In Commerce with Na- League, National tions, States, among Court found that the Tenth several ” Tribes; presented Amendment impediment pro- to with the Indian .. . . Federal congressional finding action after that all hibition of interstate clearly requirements three were met. within delegation the constitutional of fed- power ty

eral “among over Commerce the sev- was intended to be included. I would eral States.” require congressional a clear indication of including governmental intent before unit The judgments of conviction are af- “enterprise.” within the definition of firmed. Further, reading language into the LIVELY, Circuit Judge, dissenting. Act a construction which govern- includes mental units within the definition of enter- Though I agree with the majority that it prise creates an internal inconsistency was government unwise for the charge which should be avoided. of the civil Some “The Office of the Governor” of Tennessee provided remedies in RICO could not have RICO, as an under I also be- by Congress apply been intended lieve it was unauthorized. There are three government. unit state It is unthinkable reasons for reaching this conclusion. In the Congress would have intended to au- place, first language there is no in the text thorize a “prohibit any person court to of the statute which indicates govern- engaging in type the same of behavior1 as mental units were intended to be treated as enterprise engaged the in ...” when that enterprises purposes for prosecu- of RICO enterprise is the office of the chief execu- tions. It is a requirement that there be an state, tive of a or to order “dissolution or enterprise engaged in interstate commerce reorganization” thereof. 18 U.S.C. and that someone employed by or associated 1964(a). It Supreme is true that the § enterprise conduct its affairs Court in Turkette inapplica- stated that the through a pattern of racketeering activity. bility particular to a illegitimate enterprise 1962(c) U.S.C. RICO § contains of one or more of the civil remedies con- its own definition of “enterprise”; it in- tained in RICO does not lead to the conclu- individual, cludes “any partnership, corpora- sion that existence of such civil remedies tion, association, legal entity, or other scope limits the provisions of the criminal group union or of individuals associated RICO. 452 at 101 S.Ct. at 2530. in fact although legal entity.” Nevertheless, the Congress fact that includ- 1961(4) (1976). U.S.C. While it is true ed such drastic remedies in RICO without that the only modifier of “enterprise” in the any limitation indicates at least that RICO definition is the “any,” word I do not governmental treatment of a unit as an believe that either the dictionary definition enterprise was not considered. In the ab- or the statutory definition of the word can clearly sence of a stated intent to treat reasonably be governmental read to include governmental enterprises units as for the Though units. Court found purpose prosecutions, of RICO the inclusion the statutory unambiguous definition when of civil remedies which beyond would be required to determine whether illegitimate constitutional authority of a federal court as well legitimate enterprises are includ- against to invoke govern- a unit of state Turkette, ed, United States v. argues ment interpretation for an 580-81, 2524, 2527-28, 69 L.Ed.2d excludes such units from the definition. 246 (1981), finding is not conclusive with respect question to the presently under place, legislative In second I find review. The legitimate distinction between history as inconclusive as the and illegitimate enterprises quite is differ- the Act in determining itself whether a ent from that purely private between governmental activ- unit was intended to be ity and that of a unit. In purposes treated as an for of a Turkette question was whether prosecution. Con- RICO The fact that gress particular intended reach a kind of political corruption was concerned with business enterprise wholly that was enacting Organized Crime Control Act —one illegitimate. Here we must determine dispute. P.L. 91— whether an entirely However, IX, different kind of activi- just part, one Title required operation by persons trading 1. The prestige behavior is that for on formed office, illegal per- not the acts which were the office. legislative the Act. References in the histo be vested in a Governor.” The office of the ry carefully of the Act must examined governor ordinary enterprise; be is no it is the particu determine whether refer to a they sovereignty. embodiment of state As the majority clear, lar section or to the Act as a whole. None opinion makes these three concerning of the the employ statements defendants could have prosecuted been un- political corrup ment of the Act to root out as an “enterprise” consisting der RICO majority appears tion cited to have a group of individuals associated in fact. been legislative addressed to Title IX. The broadly RICO intended to be construed. history Congress per However, indicates to me that since neither the relating special ceived Title I of the legislative history requires statute nor its Act — grand juries fight interpretation governmen- the chief vehicle for an which treats —as hand, ing political corruption. enterprises, On other tal units as RICO and since Title IX was seen weapon corruption government as a for combat effectively can be ing organ the economic power through provisions wielded reached other of the Or- ized through operation ganized crime of busi Crime Control Act of 1970 and oth- ness enterprises, legitimate illegit both er federal criminal laws such as those deal- Turkette, imate. ing fraud, United su See with extortion and mail consider- ,pra (remarks quoted of various senators comity ation of should lead courts to 591-92, 101 footnotes 13 and 452 U.S. at give interpretation RICO a less intrusive S.Ct. at 2533. adopted by than that majority. Instead joins this court now those other courts The fact that political corruption was a which have adopted a construction of RICO concern in enacting legislative the entire concepts which is antithetical to the basic package which Organized became the Crime federalism. I would buck this tide and Control Act is totally inconclusive on the judgment reverse the of the district court. issue of whether intended to in governments clude various units of state

within a applies only definition which

one of separate the twelve titles of the Act.

When purpose various broad statements of

are laid explicit aside there remain no refer UNITED legislative ences in the STATES of America ex history sup rel. DOSS, port Petitioner-Appellant, Ronald a conclusion that the “enterprise” re quired for a prosecution may consist of a governmental unit. See United States BREWER, Warden, Lou V. v. Grzywacz, 603 F.2d 690-92 Respondent-Appellee. 1979) J., (Swygert, dissenting), cert. No. 80-2593. Appeals, States Court of Seventh Circuit. Finally, and perhaps importantly, most the Act interpreted should be way such a Argued Oct. 1981. as to avoid straining delicate state-federal Decided March relations. There is provision no in the Con- Certiorari 4,1982. Denied Oct. stitution or statutes of Tennessee establish- See 103 S.Ct. 101. ing “The Office of the Governor.” How- ever, III, provides, Article “The Section power Executive of the state shall proof thing opera-

2. The in this record which is treated as different to hold that the normal affecting sufficient to establish activities tions of the office of the chief executive of a However, slight. may treating interstate commerce is these state be basis of the office proba- enterprise engaged pur- are activities of individuals which would in commerce for the bly pose prosecuting establish a sufficient nexus with commerce individuals who have mis- support prosecution their as an used their connections with that office. quite individuals associated in fact. It

Case Details

Case Name: United States v. William Aubrey Thompson, Thomas Edward Sisk and Charles Frederick Taylor

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 4, 1982

Citation: 685 F.2d 993

Docket Number: 81-5176, 81-5490 and 81-5495

Court Abbreviation: 6th Cir.