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UNITED STATES v. LOBUE

November 20, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
NICK LOBUE and DONALD PRISCO, Defendants


Suzanne B. Conlon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

 Defendants Nick Lobue and Donald Prisco were indicted for criminal violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d); extortion in violation of 18 U.S.C. § 1951; and tax violations under 26 U.S.C. § 7206(1). Lobue and Prisco move to dismiss the RICO charges (counts I and II) on the ground that RICO is unconstitutionally vague. In addition, Lobue and Prisco move for a bill of particulars, for immediate disclosure of all evidence favorable to them, and for an order requiring the government to give notice of its intention to use evidence of other crimes, wrongs, or acts.

 BACKGROUND

 On a pretrial motion to dismiss, the court must determine whether the allegations in the indictment are sufficient to charge an offense, regardless of the strength or weakness of the government's case. United States v. Sampson, 371 U.S. 75, 78-79, 9 L. Ed. 2d 136, 83 S. Ct. 173 (1962); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988). For the purposes of Lobue and Prisco's motion to dismiss, the court accepts as true the factual allegations in the indictment.

 The government bases its RICO charges in counts I and II on alleged predicate acts of extortion and bribery by Prisco and Lobue. At all times relevant to the indictment, Lobue served as finance commissioner of the City of Chicago Heights, Illinois. Lobue was primarily responsible for overseeing the city's revenues and expenses. Lobue's position entitled him to vote on all matters before the city council. Prisco was president of the Village of South Chicago Heights, Illinois. In addition to their positions in city government, Lobue and Prisco co-owned and operated the Lincolnway Currency Exchange in Chicago Heights, and the East Chicago Heights Currency Exchange in East Chicago Heights. Lobue also owned and operated the A. A. Arken Corporation ("Arken"), an exterminating business. Much of the bribe money at issue was allegedly filtered through the two currency exchanges, and the exterminating business.

 Prisco and Lobue's alleged acts of bribery and extortion center around their involvement in the City of Chicago Heights' award of contracts for garbage disposal and the operation of the city's landfill. Count I charges Lobue and Prisco with conspiring to extort money and receive bribes from the owners of a garbage collection business known as Fitzpatrick Brothers Disposal Service, Inc. ("Fitzpatrick Brothers"), and a landfill operation business called Fitz-mar, Inc. ("Fitz-mar"). In addition, Lobue and Prisco are charged with conspiracy to receive bribes from Albert Tocco, who is not named as a defendant in this case. Tocco purchased Fitzpatrick Brothers in June 1983, and renamed the business Chicago Heights Disposal. Count II charges Lobue and Prisco with actually committing the conspiratorial acts. The specific allegations regarding the garbage disposal contracts and the contract for the operation of the landfill are discussed below.

 A. Fitzpatrick Brothers Garbage Disposal Business

 Until June 1983, Fitzpatrick Brothers, based in Steger, Illinois, was owned by Martin and Harold Wondaal and managed by Charles Fitzpatrick. In April 1980, Prisco advised Charles Fitzpatrick that Fitzpatrick Brothers could obtain the city garbage hauling contract beginning in June 1980 by making cash payments to public officials. Martin Wondaal and Charles Fitzpatrick agreed to this arrangement. On April 22, 1980, the City of Chicago Heights awarded its garbage hauling contract to Fitzpatrick Brothers. Shortly thereafter, Martin Wondaal and Charles Fitzpatrick made a series of cash payments to Prisco and Lobue for their work in securing the garbage hauling contract.

 On February 12, 1981, Fitzpatrick Brothers submitted a bid to obtain the City of Chicago Heights' contract for picking up bulk garbage items, a service not included in the original contract. Before the city council voted on the contract, Prisco promised Ernest Molyneaux, the superintendent of streets and public improvements for Chicago Heights, that Molyneaux could expect to receive $ 1500 if Molyneaux would support Fitzpatrick Brothers' bid. On April 27, 1981, the Chicago Heights city council voted to accept Fitzpatrick Brothers' bid. Prisco subsequently met with Molyneaux and gave him $ 1500.

 Sometime prior to June 1983, Albert Tocco advised Martin Wondaal that Tocco would be taking over the Chicago Heights garbage hauling contract. After hearing this news, Wondaal agreed to sell Tocco the business. On June 1, 1983, Chicago Heights renewed its contract with Fitzpatrick Brothers to provide garbage disposal service for three years. Tocco purchased Fitzpatrick Brothers that same day, and renamed it Chicago Heights Disposal. On April 3, 1984, the city executed a new contract doubling the frequency of garbage collection each week, doubling the amount of compensation to Chicago Heights Disposal, and extending the term of the contract to April 1990.

 On September 27, 1984, Lobue wrote a letter to Tocco suggesting that Tocco use Arken, Lobue's business, for exterminating services. No exterminating services were ever rendered. Nevertheless, between October 1, 1984 and May 28, 1987, Tocco issued monthly checks for $ 1800 payable to Arken on the account of Chicago Heights Disposal. Lobue frequently picked up the monthly check in person, and the check would subsequently be deposited into Arken's account. Lobue would then receive a corresponding check for approximately $ 1800 drawn on Arken's account. Arken recorded these checks as commissions to Lobue. Besides the monthly payments to Arken, Tocco also made monthly payments of at least $ 175 to Molyneaux from 1983 to 1987.

 B. Landfill Contract

 In early 1982, Prisco advised Martin Wondaal that Wondaal would have to make a payment to Chicago Heights officials. Prisco told Wondaal to obtain $ 20,000 in gold coins for the payment. Wondaal used money from Fitz-mar to purchase 50 South African Kruggerands, at a cost of $ 20,950. Wondaal left the Kruggerands with a Chicago Heights police officer who, at Prisco's request, had escorted Wondaal to the coin shop. Sometime thereafter, Prisco gave Charles Fitzpatrick nine Kruggerands, apparently in compensation for Fitzpatrick's role in securing the landfill contract. In addition, Lobue gave Molyneaux eleven Kruggerands.

 During 1982 and 1983, Prisco received weekly checks for $ 500 or more from Fitz-mar. Prisco did not perform any legitimate services in exchange for those payments. In May 1983, Prisco again demanded a large payment from Martin Wondaal for city officials and suggested that the funds be generated by disguising the withdrawal as a purchase of equipment. Prisco received the payoff through Lee Wichowsky, a dealer in heavy equipment. Martin Wondaal wrote two checks on Fitz-mar's account for a total of $ 36,000 payable to Lee Wichowsky. Wichowsky cashed the checks and turned over a substantial portion of the proceeds to Prisco.

 From 1982 through 1987, Prisco and Lobue periodically demanded and received payoffs from Fitz-mar in the form of cash, Fitz-mar stock, gold coins and checks written to fictitious payees. Molyneaux also demanded and received substantial payoffs from Martin Wondaal on behalf of Fitz-mar.

 DISCUSSION

 I. Lobue and Prisco's Motion to ...


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