The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On November 27, 1985 the United States Attorney obtained from
the grand jury its fifth essay — the fourth superseding
indictment (simply the "Indictment," except where it is
necessary to distinguish the current version from prior
versions) — at leveling multiple charges against Cyrus Yonan,
Jr. ("Yonan"). This latest return to the drawing board was
directed at correcting obvious drafting errors in the third
superseding indictment,*fn1 which had itself made one
important substantive change from the second superseding
indictment, the version dealt with in this Court's November 15,
1985 memorandum opinion and order (the "Opinion," 622 F. Supp. 721).
For the same reasons discussed in the Opinion, id. at 722-26,
Indictment Count Two (identical to Count One of the second
superseding indictment) is dismissed. Indictment Count Three
(identical to Count Two of the second superseding indictment)
survives under the analysis in the Opinion, id. at 727-28. Mail
fraud Indictment Counts Four through Eleven also stand, for the
reasons stated in the Opinion, id. at 729-34 in dealing with
corresponding Counts Three through Ten of the second
It is by now familiar lore that proper pleading of a Section
1962(c) charge requires the allegation that a "person"
conducted or participated in the affairs of an "enterprise,"
each of the quotation-marked terms being an entity distinct
from the other. Haroco, Inc. v. American National Bank & Trust
Co., 747 F.2d 384, 400-02 (7th Cir. 1984) (citing with approval
this Court's decision in Parnes v. Heinold Commodities, Inc.,
548 F. Supp. 20, 23-24 (N.D.Ill. 1982)), aff'd per curiam, ___
U.S. ___, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). Further,
Section 1962(c) in terms attaches criminal responsibility only
to a person "employed by or associated with" an enterprise.
Yonan (the "person") was obviously not "employed by" the
State's Attorney's Office (the charged "enterprise"). Thus he
must perforce have been "associated with" that office if Count
One is to stand. Unfortunately, RICO's definitional Section
1961 does not prescribe the content of "associated with," nor
is the legislative history very helpful. But a few basic
propositions will serve to put Yonan's situation in proper
RICO's very sentence structure and normal use of the English
language demonstrate that "associated with" is a concept wholly
distinct from "conduct[ing] or participat[ing], directly or
indirectly, in the conduct of such enterprise's affairs through
a pattern of racketeering activity."*fn4 In that respect
United States v. Forsythe, 560 F.2d 1127, 1136 (3d Cir. 1977),
on which the government relies in part, simply misreads the
statute. In RICO terms the phrase "associated with," like
"employed by," defines a status relationship between the person
and the enterprise. Acts of "racketeering" by the "person,"
though the rest of Section 1962(c) says they must have an
effect on the conduct of the enterprise's affairs, do not
themselves provide the status nexus between the racketeer and
the enterprise. United States v. Bledsoe, 674 F.2d 647, 663
(8th Cir. 1982). Were it otherwise, robbing a bank twice would
cause the robber to be "associated with" the bank. Just as the
enterprise itself must amount to more than a sheer pattern of
racketeering activity, United States v. Turkette, 452 U.S. 576,
583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981) ("enterprise"
is "proved by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function
as a continuing unit"), one does not "associate with" an
enterprise by committing crimes against it.
In part, Congress' use of the term "associated with" (and not
simply the term "employed by") shows an intention to permit
criminal charges against persons outside the organizational
structure of an enterprise as well as within it.*fn5
United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert.
denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978);
United States v. Bright, 630 F.2d 804, 830 (5th Cir. 1980)
(citing Elliott); United States v. Lee Stoller Enterprises,
652 F.2d 1313, 1320-21 (7th Cir. 1980) (en banc) (citing Bright),
cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 615
(1981). But that does not answer what quality of "association"
is required to permit the outside person to be swept into the
RICO, it should be remembered, is directed against the
acquisition and conduct of "enterprises" through specified
types of criminal behavior by persons directly linked to those
enterprises. Sections 1962(a) and (b) address the acquisition
of interests in, and the maintenance of, enterprises through
racketeering (Section 1962(b)) or through funds obtained from
racketeering (Section 1962(a)). Section 1962(c) addresses the
conduct of enterprises through racketeering activity by
specified categories of persons.*fn6 Thus a prime instance of
the sort of non-employee target Congress aimed at through RICO
is the control of a corporate enterprise's activities by a
majority shareholder — a "person" who is not necessarily an
employee but who is clearly "associated with" the
Subcontractors, accountants, lawyers and consultants all may
be "associated with" an enterprise, see Schacht v. Brown,
711 F.2d 1343, 1360 (7th Cir.), cert. denied, 464 U.S. 1002, 104
S.Ct. 508, 78 L.Ed.2d 698 (1983) though they are not its
employees.*fn8 And as n. 5 illustrates, if the enterprise is
simply what Section 1961(4) calls "any union or group of
individuals associated in fact although not a legal entity,"
logic as well as normal language usage tells us each of those
individuals is ordinarily "associated with" the enterprise
(whether or not its employee). Membership in a union or a club
is an example, as well as membership in a criminal organization
of the sort described in Turkette.
Whether inside or outside the enterprise's organizational
structure, all of the "associates" given above as examples
share two characteristics:
1. All have a relationship with the enterprise
characterized by a stake or interest in the goals
of the enterprise — legitimate or illegitimate.
2. All are associated with the enterprise as
such, not merely with some other individual who is
"employed by or associated with" the enterprise
but is off on a frolic and detour of his or her
Both those characteristics are in a sense tautological. But
that is due in large part to their obviousness. And given the
government's myopia on this score, it is necessary to state
them in that form to show exactly why Yonan's connections ...