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UNITED STATES v. LAVIN

January 16, 1981

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THOMAS LAVIN, DONALD ERSKINE, STANLEY BALODIMAS, VINCENT BATTISTA, BARTLEY BURNS, LAURENCE KELLY, KENNETH VALERUGO, AND JOHN VANDENBERGH, DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

  MEMORANDUM AND ORDER

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 fraud offenses:

  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 n. 10.*fn5

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 ...


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