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UNITED STATES v. KAYE

May 16, 1984

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALAN KAYE, DEFENDANT.



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

  MEMORANDUM OPINION AND ORDER

Alan Kaye ("Kaye") is charged in a nine-count indictment with violating:

    1. the Racketeering Influenced and Corrupt
  Organizations Act ("RICO"), 18 U.S.C. § 1962(c)
  ("Section 1962(c)") (Count One);
    2. the mail fraud statute, 18 U.S.C. § 1341
  ("Section 1341") (Count Two);
    3. the Hobbs Act, 18 U.S.C. § 1951 ("Section
  1951") (Counts Three through Eight); and
    4. the Crimes and Criminal Procedure Act of
  1968, 18 U.S.C. § 894 ("Section 894") (Count Nine).

Kaye now moves to dismiss all nine counts as legally insufficient. For the reasons stated in this memorandum opinion and order, his motion is granted as to Counts One and Nine, and fractionally as to Count Two, but denied as to all other counts.

Facts*fn1

During 1981*fn2 Kaye, a Cook County deputy sheriff, worked one day a month as a part-time Holiday Court bailiff at the Circuit Court of Cook County ("Circuit Court"). During that year Kaye actually solicited and received, or attempted to solicit, money for the asserted purpose of influencing judges in divorce proceedings:

    1. actual receipts from Leo Zutler ("Zutler")
  on April 15, November 12 and November 19 relating
  to Zutler's pending divorce proceeding;
    2. actual receipts from Ronald Elder
  ("Elder")*fn3 on December 3 and 10 in connection
  with Elder's pretended divorce proceedings; and
    3. attempted solicitation from Elder in
  September and October, when Elder's purported
  divorce proceedings were soon to be filed.

Two other facts are relevant to one or more of the counts:

    1. As part of Elder's phony divorce a summons
  was mailed to an address in Richmond, Virginia,
  to be served on Elder's "wife."
    2. Even though Kaye represented otherwise to
  Zutler and Elder, government prosecutors have
  acknowledged they will not attempt to prove at
  trial that Kaye in fact had any contact with,
  made any payment to or attempted to influence,
  any judge.

Count One — RICO

Section 1962(c) reads:

  It shall be unlawful for any person employed by
  or associated with any enterprise engaged in, or
  the activities of which affect, interstate or
  foreign commerce, to conduct or participate,
  directly or indirectly, in the conduct of such
  enterprise's affairs through a pattern of
  racketeering activity or collection of unlawful
  debt.

Count One alleges Kaye:

    1. is associated with an "enterprise" (the
  Circuit Court) whose activities affected
  interstate commerce and
    2. participated in the conduct of the Circuit
  Court's activities through a "pattern of
  racketeering activity" (solicitation and receipt
  of bribes).

Kaye raises a number of arguments against the legal sufficiency of Count One:

    1. Kaye's alleged bribery does not constitute
  "racketeering activity."
    2. Kaye's activities did not have a sufficient
  impact on interstate commerce.
    3. Kaye was not "employed by" or "associated
  with" the Circuit Court.
    4. Kaye did not participate in the Circuit
  Court's affairs through his acts of bribery.

Each argument will be considered in turn. As will be seen, only Kaye's final contention is ultimately successful.

1.  Racketeering Activity

For purposes of this case "racketeering activity" is defined in 18 U.S.C. § 1961(1)(A) as:

  any act or threat involving murder, kidnaping,
  gambling, arson, robbery, bribery, extortion, or
  dealing in narcotic or other dangerous drugs,
  which is chargeable

  under State law and punishable by imprisonment
  for more than one year.

Count One charges Kaye with violating Ill.Rev.Stat. ch. 38, ¶¶ 33-1(d) and (e),*fn4 each of which is punishable by imprisonment for more than one year. Ill.Rev.Stat. ch. 38, ¶ 1005-8-1(a)(5).

Kaye argues his alleged activity, because the money was not passed on to any judge, is not the type of bribery encompassed within the phrase "racketeering activity." That contention is without merit.

United States v. Forsythe, 560 F.2d 1127, 1137 n. 23 (3d Cir. 1977) (quoting United States v. Dansker, 537 F.2d 40, 48 (3d Cir. 1976)) teaches Congress, in defining racketeering activity, used "bribery" in its generic sense:

  conduct which is intended, at least by the
  alleged briber, as an assault on the integrity of
  a public office or an official action.

That generic meaning focuses on the intent of the briber to influence official action. See Black's Law Dictionary 173 (5th ed. 1979).

All five subsections of Section 33-1 share that common gravamen of the crime of bribery. Subsections (a) through (c) speak of the briber's intent, while subsections (d) and (e) speak of the intent of the person taking the bribe. None of the provisions requires that the official action intended by the briber actually occur or that the public official at whom the bribe is aimed actually receive it. Thus the Illinois statute defines bribery consistently with its generic (and hence its RICO) meaning, and such bribery can constitute racketeering activity for RICO purposes.

2.  Impact on Interstate Commerce

Kaye asserts his activities did not have sufficient impact on interstate commerce to subject him to RICO's provisions. But under Section 1962(c) it is the affairs of the enterprise, not those of the person charged with violating the section, that must affect interstate commerce. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1289 (7th Cir. 1983); United States v. Nerone, 563 F.2d 836, 852-53 (7th Cir. 1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1577, 55 L.Ed.2d 801 (1978). Moreover the effect on interstate commerce need ...


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