Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 CR 789 -- Stanley J. Roszkowski, Judge.
Before Swygert, Bauer, and Wood, Circuit Judges.
The basic issue in this case is the applicability of the Racketeer Influenced and Corrupt Organizations Act (RICO)*fn1 to criminal activities which do not constitute the infiltration by organized crime of legitimate business. Defendants deny that the Act can be applied to a series of burglaries committed in two states by defendants who are not shown to be members of "organized crime" but also argue, in the alternative, that if the Act is applicable to these particular circumstances, then it should be declared unconstitutional as being vague, a denial of equal protection and as permitting the imposition of cruel and unusual punishment. The other issues relate to severances, alleged trial errors, and sentencing. We resolve all the issues against defendants.
Defendants Aleman and Foresta were charged in a nine count indictment with two violations of RICO by reason of a pattern of racketeering activity involving the commission of three home robberies in Illinois and Indiana. The additional counts alleged the transportation of stolen goods from an Indiana robbery in interstate commerce, and the transportation and possession of firearms. In a jury trial Aleman was found guilty on one count of conspiracy to violate the Act (18 U.S.C. § 1962(d)) (Count I), one count charging a substantive violation of the Act (18 U.S.C. § 1962(c)) (Count II),*fn2 and one count of transporting stolen goods in interstate commerce (18 U.S.C. § 2314) (Count III).*fn3 Aleman was found not guilty on two firearms counts (Counts V and VII). Foresta was found guilty of the same RICO violations and Count III, and in addition guilty of the particular firearms violations applicable to him (Counts IV, VI, VIII, and IX).*fn4
Some examination of the evidence is necessary. The government's case was based to a large extent on the testimony of Louis Almeida, concededly a professional criminal, who was named in the indictment as an unindicted co-conspirator. His testimony was supplemented by testimony of the home invasion victims. Three robberies were involved.
The first robbery occurred on September 16, 1972, at the home of Mrs. Barbara LaPapa in Oak Lawn, Illinois, following a meeting at the Survivor's Club in Chicago between Aleman, Foresta, Almeida, and two others, not involved in this appeal. It was believed by them that Mrs. LaPapa had a large amount of cash in her home which they planned to steal and divide. Foresta and Almeida were selected to actually perform the robbery. Aleman provided the keys to a stolen car for their use and the address of the target home. At the home Foresta threatened Mrs. LaPapa by pressing the barrel of his gun against her stomach and then with help from Almeida tied her up on the floor. A 14-year old baby sitter for Mrs. LaPapa's infant child was also tied up. After about 30 minutes spent in searching the house and collecting cash and jewelry, Foresta and Almeida left leaving the victims tied. They returned with the loot to the club where the others waited. Aleman paid Foresta and Almeida each $500 for their burglary services.
The second burglary did not occur until January 1973, although the defendants and Almeida continued to associate with each other. The genesis of this robbery also took place at the club. The target was a doctor's home in Indianapolis where defendants believed a large amount of cash was kept. Foresta and Almeida were again selected to actually undertake the robbery. Aleman supplied the information about the target home along with a sheriff's badge to be used as a ruse to gain entry. Aleman advised that weapons be carried. Proceeding to Indianapolis, Foresta and Almeida first went to the residence of Leo Miroff, a friend of Aleman's, as they had been instructed to do by Aleman. Miroff and his girl friend, Jane Powers, were present. Miroff, assuring Foresta and Almeida about the amount of cash, showed them the doctor's home. Later Foresta and Almeida went to the doctor's home and, using the sheriff's badge, pushed their way in past the maid, the only person present. She was threatened with a gun and then tied up. After about an hour Foresta and Almeida left with jewelry, furs, and cash, of a total value of about $35,000, and with the maid's car which was later abandoned. Rejoining Miroff and Powers, all four drove with the fruits of the robbery to the home of Aleman in Chicago. Again Aleman paid Foresta and Almeida each $500 for their burglary services. Miroff, at Aleman's direction, was to sell the stolen goods piecemeal rather than in bulk. In the meantime Miroff and Powers became house guests of a friend, Robert Harder, in the Chicago area where they stored the Indianapolis loot while attempting to dispose of it. Miroff chose one prospective customer, but it was a bad choice. The customer was an undercover agent of the Federal Bureau of Narcotics and Dangerous Drugs. As a result, most of the loot was recovered in connection with arrests at the friend's house. Also seized was a small book with names and telephone numbers which is involved in one of the trial issues.
The third robbery followed in November 1973 after additional contacts between the parties at the club and a pre-robbery planning session. This time the target was a north side Chicago home where information led them to believe they would find a large quantity of gold coins. Aleman, Almeida, Foresta, and another man directly participated in this robbery. Again using the sheriff's badge, Foresta and Almeida entered the home and struck the owner in the head with a gun. When he fell, they tied him. His wife was also tied. All four of the robbers searched and ransacked the house for almost an hour and left with about $6,500 worth of various items, but no gold coins.
The defendants did not testify, and relied in their defense primarily on efforts to impeach Almeida and in discrediting eyewitness identifications.
Based on those facts, the indictment charged in part:
(Being) persons associated with an enterprise engaged in and the activities of which affected interstate commerce, to wit, a group of individuals associated in fact to plan and commit robberies, to carry away stolen goods and to divide among themselves the stolen goods and all proceeds derived therefrom, unlawfully, wilfully and knowingly did conduct and participate, directly and indirectly in the conduct of such enterprise's affairs through a pattern of racketeering activity, to wit, the commission of robberies in Chicago, Illinois, Oak Lawn, Illinois and Indianapolis, Indiana.
Defendants claim that their alleged criminal conduct does not violate either § 1962(c) or § 1962(d). To support their view they point out numerous congressional quotations from Reports of the Senate*fn5 and House*fn6 suggesting a legislative intention that § 1962 was to apply only to the infiltration by organized crime of legitimate organizations. However, nothing is found in the legislative history, even if we assume that some ambiguity in the Act requires that it be examined, to suggest that the broad wording of the statute is strictly limited to organized crime activities where legitimate business is involved, and may not be used under its broad language to also curb other criminal activities when the acts are part of an illegal enterprise. In addition to the quotations from various Congressmen, defendants cite a law review article written by the late Senator John L. McClellan, one of the sponsors of The Organized Crime Control Act, which encompasses § 1962. "Title IX (§§ 1961-1968)," the Senator wrote, "is aimed at removing organized crime from our legitimate organizations." McClellan, The Organized Crime Act (S. 30) Or Its Critics: Which Threatens Civil Liberties?, 46 Notre Dame Law. 55, 141 (1970). But that one sentence is not all the Senator said about the purposes of Title IX. A few pages later the Senator, in answer to criticisms that the statutory list of crimes of which robbery is a part was too inclusive and included offenses often committed by persons not engaged in organized crime, further explained:
The Senate report does not claim, however, that the listed offenses are committed Primarily by members of organized crime, only that those offenses are characteristic of organized crime. The listed offenses lend themselves to organized commercial exploitation, unlike some other offenses such as rape, and experience has shown they are commonly committed by participants in organized crime. That is all the title IX ...