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
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
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,
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
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
Kaye raises a number of arguments against the legal
sufficiency of Count One:
1. Kaye's alleged bribery does not constitute
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.
For purposes of this case "racketeering activity" is defined
in 18 U.S.C. § 1961(1)(A) as:
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, ¶
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
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