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October 17, 1990

HENRY ANDREWS, Thomas Bates, Roger Bowman, Jeff Boyd, George Carter, Jackie Clay, Edgar Cooksey, Andrew Craig, Jerome Crowder, Lawrence Crowder, Floyd Davis, William Doyle, Harry Evans, Eddie Franklin, Bernard Green, Charles Green, Henry Leon Harris, Earl Hawkins, Louis Hoover, J. L. Houston, Eugene Hunter, Derrick Kees, Isiah Kitchen, Alan Knox, Sammy Knox, Roland Lewis, Felix Mayes, Melvin Mayes, Walter Pollard, Derrick Porter, Noah Robinson, Michael Sardin, James Speights, Anthony Sumner, Freddie Elwood Sweeney, Melvin Tillman, Edward Williams and Rickie Dean Williams, Defendants

The opinion of the court was delivered by: ASPEN


 On October 27, 1989, the grand jury returned a 175 count indictment against the 38 defendants in this case. Counts One and Two of this indictment allege violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1962(c) and (d). Six of the defendants, namely Henry Andrews, Jerome Crowder, Roland Lewis, Felix Mayes, Noah Robinson and James Speights, have filed motions to dismiss these Counts arguing that the RICO statute is unconstitutionally vague. For the reasons discussed below, these motions are denied.

 I. Facts

 For the purposes of this motion to dismiss, we will assume the facts alleged in the indictment are true. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). It is not, however, necessary to recite these facts and the charges against each defendant in detail. Instead, it will suffice to briefly summarize the nature of the alleged criminal activities and their scope. According to the indictment, each of the moving defendants was associated with the El Rukns, a purportedly infamous Chicago-based street gang. The El Rukn gang was a highly disciplined and organized association that existed solely for the purpose of perpetrating crime. It existed, in various forms, for 23 years, from 1966 to 1989. During this time, the El Rukns committed uncountable acts of racketeering including 20 murders, 12 attempted murders, 11 conspiracies to murder, one act of kidnapping, wide scale drug trafficking and numerous acts of obstruction of justice. These activities were carried out through a formal chain of command that was headed by Jeff Fort, an unindicted co-conspirator. Five of the moving defendants held positions at the second and third levels of command, referred to as "generals" and "officers" respectively. As such, these defendants "operated and promoted the activities of the enterprise, and exercised authority over subordinate members."

 The primary "business interest" of the El Rukns was the distribution of narcotics wherein 37 defendants, including each of the moving defendants, conspired to possess with intent to distribute, and to distribute, multi-kilogram quantities of heroin and cocaine, hundreds of pounds of marijuana, thousands of amphetamine pills, thousands of Talwin and Triplenamin pills, multi-liter quantities of codeine syrup and large quantities of Phencyclidine or PCP. To protect these drug operations from the ambitions of "competitors," the El Rukns found it necessary to murder a slew of rival drug dealers and rival gang members. To protect members from prosecution for some of these murders and other crimes, the El Rukns killed, intimidated, and kidnapped witnesses. Each of the moving defendants is charged with significant participation in these criminal activities.

 II. Discussion

 Count One of the indictment charges the defendants with a violation of § 1962(d), which proscribes conspiracies to violate substantive RICO, § 1962(a), (b) or (c). Count Two charges a violation of § 1962(c), which states:

 According to 18 U.S.C. 1961(5), "'a pattern of racketeering activity' requires at least two acts of racketeering activity" within ten years. The defendants focus their vagueness attack on the word "pattern" in the phrase "pattern of racketeering activity."

 The Supreme Court recently wrestled with the meaning of this word in H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). After recognizing that "Congress has done nothing to . . . illuminate RICO's key requirement" and the "plethora of different views expressed by the Courts of Appeals," the Court endeavored to provide some guidance. Id. at 2899. It declared "that to prove a pattern of racketeering activity a . . . prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." Id. at 2900 (emphasis in original). Thus, it is "continuity plus relationship" that establishes a "pattern." Id. (emphasis removed); see also Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S. Ct. 3275, 3285 n. 14, 87 L. Ed. 2d 346 (1985).

 As to the relatedness requirement, the Court explained that the predicate acts must have "the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Id. 109 S. Ct. at 2901. As to the continuity requirement, the Court explained that it can be shown by "proving a series of related predicates extending over a substantial period of time." Id. at 2902. This requirement can also be shown by the threat of continuity, which, according to the Court, is established "if the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit." Id.

 In support of their motions, the defendants rely primarily on Justice Scalia's concurring opinion in H.J. Inc., in which he expressed grave doubts about the value of the Court's attempt to define "pattern" opining that it "increases rather than removes the vagueness." Id. at 2908. He also ominously predicted that RICO's ultimate demise would result from this vagueness stating that, although "no constitutional challenge to this law has been raised in the present case . . ., that the highest Court in the land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented." Id. at 2909.

 Accepting this clear invitation, the defendants here raise a constitutional challenge on the grounds of vagueness. In this misdirected attack, the defendants argue that the "pattern" requirement is ambiguous and unclear "on its face." They contend, in essence, that it fails to inform potential and hypothetical transgressors of the precise activities that are proscribed. This attack is misdirected in one crucial respect: vagueness challenges to statutes that do not implicate First Amendment freedoms are examined in light of the particular facts of the case at hand. New York v. Ferber, 458 U.S. 747, 767-68, 102 S. Ct. 3348, 3360-61, 73 L. Ed. 2d 1113 (1982); United States v. Mazurie, 419 U.S. 544, 95 S. Ct. 710, 714, 42 L. Ed. 2d 706 (1975) (citing United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S. Ct. 594, 598, 9 L. Ed. 2d 561 (1963)); Bradley v. Lane, 834 F.2d 645, 650 (7th Cir. 1987), cert. denied, 486 U.S. 1012, 108 S. Ct. 1746, 100 L. Ed. 2d 209 (1988). *fn1" Thus, because there is no conceivable implication of the First Amendment here, it is irrelevant that RICO may be unconstitutional with respect to theoretical and marginal cases not before the Court. Accordingly, to succeed in a vagueness challenge, each defendant must demonstrate that RICO's "pattern" requirement is vague with ...

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