The opinion of the court was delivered by: Moran, District Judge.
In the present case the United States has charged nine*fn1
defendants with, inter alia, violations of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961
et seq., and mail fraud, 18 U.S.C. § 1341.*fn2 The
indictment arises out of an alleged conspiracy at the Cook
County Board of [Tax] Appeals. In Count 1, the RICO count,
defendants Thomas Lavin and Donald Erskine, Deputy
Commissioners of the Board, are alleged to have taken bribes
from certain taxpayers in return for fraudulently disposing of
the taxpayers complaints resulting in unwarranted property
assessment reductions. The same count alleges that defendants
Stanley Balodimas, Vincent Battista, Bartley Burns, Laurence
Kelly, Kenneth Valerugo, John Vandenbergh and others acted as
"runners" soliciting property owners who wished to obtain
property assessment reductions pursuant to this scheme. Counts
2 through 82 of the indictment alleged different mailings to
perpetrate the fraud described above. At issue here is a series
of pre-trial motions filed by the defendants to which the
government has replied. The majority of these motions either
resulted in government compliance or are amenable to summary
resolution, and they have been so disposed in a separate
order, of this date. The remaining motions are considered
seriatim as set forth below.
Initially, however, the court notes that certain of the
defendants have filed motions to adopt the filings of the
other defendants. These motions have previously been granted.
Accordingly, in resolving and discussing the merits of the
motions that follow, the court will consider them
collectively, without regard to the individual defendant who
may have raised the issue.
I. MOTIONS TO DISMISS THE INDICTMENT
Defendants have raised several specific challenges to the
RICO count as applied to them. In particular, they argue that
the Board of Tax Appeals cannot be considered an "enterprise"
within the meaning of the statute. In addition, certain of the
defendants who are not actually employees of the Board submit
that they are not "associated with" the enterprise as
contemplated by the legislation. Neither of these arguments
can be sustained.
The question of whether the Board is an "enterprise" as
defined by 18 U.S.C. § 1961(4) already has been settled by the
Seventh Circuit. In United States v. Grzywacz, 603 F.2d 682
(7th Cir. 1979), the Court of Appeals held that § 1961(4)
contemplated that public entities may constitute enterprises
through which racketeering is conducted, 603 F.2d at 686. The
Board of Appeals meets this description and as such,
defendants' claims are without merit.
Moreover, in Grzywacz, the panel emphasized repeatedly that
in enacting RICO, Congress "intended to frame a widely
encompassing enactment to protect both the public and private
sectors from the pervasive influences of racketeering." 603
F.2d at 682. In view of the Seventh Circuit's expansive
perspective regarding RICO, the court is persuaded that
defendant's suggested interpretation of the meaning of
"associated with" is too narrow. Such a construction conflicts
with not only the explicit congressional mandate to broadly
construe the legislation but also with the plain meaning of the
term "associate."*fn3 Still further, the language of the
statute itself at least inferentially defines "associated with"
as "direct or indirect participation in the conduct of the
enterprise." 18 U.S.C. § 1962(e)*fn4. Accordingly, it is held
that even those defendants not directly employed by the Board
of Appeals are within the ambit of the statute since by
soliciting and accepting property assessment complaints they
were "associated with" this enterprise.
In their motions to dismiss, defendants have raised still
other objections to the indictment. For example, defendants
claim that the indictment must be dismissed because it fails
to contain a "plain, concise and definite written statement"
of the essential facts constituting the defenses charged in
violation of Rule 7(c) of the Federal Rules and Criminal
Procedure ("Fed.R.Crim.Pro."). Defendants also contend that
the charges in the indictment were duplicitous and are thus
infirm under the principles of Kotteakos v. United States,
328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
In the court's view, however, the indictment may be
sustained as written. It is a matter of hornbook law that the
prohibitions against vague and duplicitous indictments serve
to protect the defendants' rights guaranteed by the Sixth and
Fifth Amendments to (1) be adequately informed of the nature
and cause of the charges against them so that they can prepare
their defenses; and (2) be protected against multiple
prosecutions for the same offense. United States v. Ray,
514 F.2d 418 (7th Cir. 1975); United States v. Climatemp, Inc.,
482 F. Supp. 376, 384 (N.D.Ill. 1979).
An examination of the indictment indicates that the
standards of Fed.R.Crim.Pro. 7(c) have been satisfied here.
The essential facts and actions of the defendants have been
set forth. And the indictment sufficiently evinces the
elements which comprise the mail fraud and RICO violations. In
short, defendants have been provided with enough information
both to inform them of the nature of the charges against them
and to shield them from the risk of double jeopardy.
Nor is the indictment multiplicitous. The fact that two
separate substantive offenses — RICO and mail fraud — have
been alleged from a single conspiratorial scheme does not flaw
the indictment. As the court noted in United States v. Brighton
Bldg. & Maintenance Co., 435 F. Supp. 222, 229 (N.D.Ill. 1977),
upholding an indictment charging criminal Sherman Act and mail
It is not rare that one series of actions by a
defendant can give rise to more than one
violation of the laws of a jurisdiction and each
violation can be punished.
Moreover, the government's decision to prosecute each
individual fraudulent property assessment complaint as a
separate count of the indictment is not improper. The Court of
Appeals recognized in United States v. Joyce, 499 F.2d 9, 18
(7th Cir. 1974), that each distinct mailing involved in the
alleged scheme may support a separate mail fraud charge. See
also, United States v. Bush, 522 F.2d 641, 649 (7th Cir. 1975);
United States v. Brighton Bldg. & Maintenance Co., supra at 229
Finally, defendants challenge the indictment insofar as it
alleges mail fraud against them under the facts of this case.
When defendants' arguments are consolidated, they essentially
raise two points. First, because Illinois law requires the
mailing of property assessment bills, the use of the mails
could not have been, under any circumstances, for the purpose
of executing the fraud. Second, since the scheme did not
depend upon receipt of the fraudulent bills by the property
owners, the scheme was complete prior to the mailings and thus
the mailings were not in furtherance of the fraud. Of these
two arguments, the former is legally incorrect and the latter
is factually unsound.
Initially, the mere fact that the mailings were required by
state law does not necessarily operate to take the instant
scheme from the reach of 18 U.S.C. § 1341. United States v.
Feinberg, 535 F.2d 1004, 1009 (7th Cir. 1976). Moreover, the
scheme as described by the indictment was far from complete
prior to the deposit of the assessment notices in the U.S.
mail. Rather, as the government points out, the conclusion of
the scheme was dependent on payments by the property owners
who, in turn, tendered no money until these notices were
received. And, the failure to pay by any property owner would
have resulted in the cancellation of the reduced assessment.
In addition, the government has charged defendants with
participating in a scheme intended to defraud the citizens of
Cook County both of their rights to the loyal, faithful and
honest services of the employees of the Board of Appeals as
well as their rights to have the business of the Board
conducted honestly, impartially and free from corruption. So
defined, the fraud could not possibly have been complete prior
to the mailings since the mailings were part of defendants"
responsibilities in the discharge