of vagueness was not before the Court, Justice Scalia's inability to provide a clearer definition of the pattern element led him to predict that a future vagueness challenge to RICO might succeed. Id. at 2909. Quintanilla now brings a vagueness challenge to the pattern element, relying extensively on Justice Scalia's H.J. concurrence.
A penal statute is void for vagueness if it (1) does not "define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited" or (2) is defined in a manner that encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983); Server v. Mizell, 902 F.2d 611, 613 (7th Cir. 1990). Absent first amendment considerations, vagueness challenges must be examined in light of the statute's application to the defendant in the particular case. New York v. Ferber, 458 U.S. 747, 767, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982); United States v. Angiulo, 897 F.2d 1169, 1179 (1st Cir.), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 98, 111 S. Ct. 130 (1990); United States v. Pungitore, 910 F.2d 1084, 1104 (3d Cir.), petition for cert. filed, (Dec. 6, 1990) (No. 90-6472); United States v. Lobue, 751 F. Supp. 748, 754 (N.D. Ill. 1990). Thus, Quintanilla's claim that RICO is unconstitutionally vague on its face is misguided.
The relevant inquiry is whether RICO's pattern element is unconstitutionally vague as applied to Quintanilla's conduct.
In the present case, there is no vagueness problem in applying RICO's pattern element to Quintanilla's alleged acts of mail and wire fraud and embezzlement. Quintanilla's alleged corrupt conduct clearly satisfies the relationship and continuity test articulated in H.J. Quintanilla allegedly used his position as director of Operation Search to defraud Heileman and the City of Chicago on several occasions. The alleged fraudulent scheme contained similar participants (Quintanilla, Monreal and Gutierrez), victims (Heileman and the City of Chicago), method of commission (submitting inflated or false claims) and results (defrauding Heileman and the City of Chicago). In addition, the alleged predicate acts of mail and wire fraud and embezzlement occurred over a substantial period of time.
In sum, Quintanilla has not shown that the pattern element as applied to his own conduct is impermissibly vague. Indeed, an ordinary person in Quintanilla's position would surely know that continuous and related acts of mail fraud, wire fraud and embezzlement amount to a "pattern of racketeering activity." Moreover, Quintanilla does not argue that the indictment resulted from arbitrary enforcement or interpretation of the pattern element of RICO. Accordingly, the motion to dismiss Count One on vagueness grounds is denied.
B. Multiple Conspiracies in Count One
Quintanilla objects to the government's use of Count One to conglomerate all the substantive and conspiracy offenses contained in Counts Two through Forty into a single charge against all three defendants for conspiracy to violate RICO. Quintanilla's argument contains two components. First, Quintanilla argues that Count One must be dismissed for failure to allege a single RICO conspiracy. Second, Quintanilla argues that defendants would suffer unfair prejudice by the "spillover from evidence relating solely to other defendants or by a transference of guilt from one defendant to another." Quintanilla's motion at 3.
1. Allegation of a Single RICO Conspiracy
As stated previously, Count One charges the three defendants with conspiring to conduct the activities of Operation Search through a pattern of racketeering activity. The "pattern of racketeering activity" referred to in Count One essentially consists of all of the substantive and conspiracy offenses charged in the rest of the forty-count indictment. Indeed, Count One expressly incorporates by reference several different alleged fraudulent schemes committed by some or all of the three defendants in various combinations. Quite understandably, Quintanilla expresses concern over the breadth of this RICO conspiracy charge, which encompasses multiple fraudulent schemes. In particular, Quintanilla contends that Count One is defective because the combination of multiple conspiracies alleged do not constitute a RICO conspiracy.
The seminal Seventh Circuit case regarding the scope of RICO conspiracy allegations is United States v. Neapolitan, 791 F.2d 489 (7th Cir.) cert. denied, 479 U.S. 940, 93 L. Ed. 2d 372, 107 S. Ct. 422 (1986). The Neapolitan court determined that "a RICO conspiracy requires only an agreement to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity." Id. at 498. In the present case, Count One clearly satisfies Neapolitan's lenient standard, for it alleges that Gutierrez, Quintanilla and Monreal agreed to conduct the enterprise of Operation Search through the commission of multiple acts of racketeering activity.
Neapolitan also forecloses Quintanilla's argument that Count One improperly uses separate conspiracies as predicate acts for the § 1962(d) conspiracy:
this section of RICO is capable of providing for the linkage in one proceeding of a number of otherwise distinct crimes and/or conspiracies through the concept of enterprise conspiracy. The government, through the vehicle of the indictment, provides the linking conspiratorial objective of a specific RICO violation.
Id. at 501 (emphasis added), citing United States v. Sutherland, 656 F.2d 1181, 1191-93 (5th Cir. 1981), cert. denied, 455 U.S. 949, 71 L. Ed. 2d 663, 102 S. Ct. 1451 (1982). See also United States v. Walters, 711 F. Supp. 1435, 1447 (N.D. Ill. 1989) (several different conspiracies may serve as predicate acts for § 1962(d) conspiracy). Under Neapolitan, the § 1962(d) conspiracy in Count One is sufficient so long as the government alleges an agreement among the three defendants to conduct Operation Search through a pattern of racketeering activity. The government has satisfied this requirement by alleging numerous instances where the three defendants cooperated in defrauding Heileman through the vehicle of Operation Search.
2. Prejudicial Effects
Quintanilla's motion to dismiss Count One raises the issue of potential prejudice to the defendants by introducing evidence at trial of multiple conspiracies involving various combinations of the three defendants. This issue is best addressed in a motion for severance. Fed.R.Crim.P. 8. Indeed, Quintanilla and Gutierrez have filed a motion to sever Counts 27 through 40 based on the potential prejudice of introducing evidence of fraudulent activity that Quintanilla allegedly committed solely on his own behalf without the cooperation of Monreal or Gutierrez. Accordingly, the court shall address Quintanilla's arguments regarding the potential prejudice of "spillover" evidence upon disposition of the severance motion.
II. Gutierrez' Motion to Dismiss the Indictment and for a Kastigar Hearing
Although Gutierrez did not receive immunity in exchange for her grand jury testimony, she argues that under the circumstances of this case, her testimony before the grand jury should be considered immunized. On this basis, Gutierrez moves to dismiss the charges against her pursuant to the federal use immunity statute, 18 U.S.C. § 6002. In the alternative, Gutierrez requests a hearing to determine whether the indictment had been tainted by the improper use of her "immunized" testimony.
When a witness is given immunity under the federal use immunity statute in exchange for testimony before the grand jury,
No testimony or other information compelled under the order [granting immunity] (or any information directly or indirectly derived from such testimony or information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order [granting immunity].