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UNITED STATES v. YONAN

December 2, 1985

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CYRUS YONAN, JR., DEFENDANT.



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 superseding indictment.

That leaves for fresh consideration only Indictment Count One, which reflects a wholly new theory*fn2 for Yonan's conviction under 18 U.S.C. § 1962(c), one of the provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968.*fn3 According to new Count One ¶ 3(b), the RICO "enterprise" (see Section 1961(4)) was the Office of the Cook County State's Attorney (the "State's Attorney's Office"). Count One ¶ 5 charges Yonan with the same acts of bribery referred to in the Opinion, 622 F. Supp. at 728, all involving payments and offers of payment to Terrence Hake ("Hake") — an Assistant State's Attorney whom Yonan believed to be corrupt but who turned out to be an undercover agent — to fix criminal cases involving Yonan's clients. As Count One ¶ 3(c) would have it, that renders Yonan "associated with" the State's Attorney's Office enterprise — a necessary ingredient of any charge under Section 1962(c).

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 perspective.

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 criminal net.

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 enterprise.*fn7

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
  own.

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 ...


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