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UNITED STATES v. MARCY

June 20, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
PASQUALE MARCY, a/k/a PAT MARCY, and FRED ROTI, Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

Defendants Pasquale Marcy and Fred Roti have filed several motions to dismiss, which we address in the following order: (1) the motion to dismiss Counts I and II; (2) the motion to dismiss racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII; and (3) the motion to dismiss Count III. For the reasons set forth below, all three motions are denied.

 I. Motion to Dismiss Counts I and II.

 Marcy and Roti offer three main arguments in support of their motion to dismiss Counts I and II. They claim that the government's indictment fails to allege a proper RICO enterprise; that Count I improperly alleges multiple conspiracies in a single count; and that Counts I and II should be dismissed for legal defects under Federal Rule of Criminal Procedure 8(b). Because the second and third arguments are essentially the same, we will address them in the same section.

 A. The Indictment Properly Alleges a RICO Enterprise

 Defendants contend that the indictment is insufficiently specific with respect to the description of the alleged RICO enterprise. They argue that it "fails to offer any description whatsoever of this purported organization and its structure," and "merely mentions defendants Roti and Pasquale Marcy and describes the alleged racketeering acts." Motion at 2.

 An indictment need not set forth evidentiary detail, and should not be dismissed where it contains the elements of the offense charged, informs the defendants of the charges, and enables them to avoid future prosecutions for the same offense(s). United States ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1046-47, 8 L. Ed. 2d 240 (1962)).

 Here, Count I alleges that an "enterprise" existed, "consisting of a group of individuals associated in fact known as 'The First Ward,' which included defendants Pasquale Marcy and Fred Roti, and which also included other members known and unknown to the grand jury. The individual members of the enterprise frequently met at Counselor's Row Restaurant in Chicago. Among the purposes of the enterprise were obtaining money, obtaining and maintaining influence over official decisions, and exercising influence over official decisions." The Fifth Circuit upheld less detailed allegations in United States v. Mitchell, 777 F.2d 248, 259 (5th Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1493, 89 L. Ed. 2d 895, cert. denied, 476 U.S. 1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986). There, the indictment defined the enterprise as "'a group of individuals associated in fact, to promote and facilitate the illegal importation and smuggling of multi-ton quantities of marijuana * * * into the United States from places outside the United States, and the distribution of said marijuana.'" Id. (quoting indictment) (ellipses in original). We find that the indictment here, supplying greater detail (including the name of the organization and the location at which its members frequently met) than the indictment in Mitchell, adequately defines the alleged enterprise. See id.

 Defendants' other "enterprise" contention is that the indictment fails to allege an enterprise separate and apart from the defendants themselves and the pattern of racketeering. Motion at 4. The defendants confuse pleading and proof requirements; to the extent that their claim goes to the sufficiency of the indictment, it fails, and to the extent that it depends on proof to be presented at trial, it is premature. The indictment itself survives the motion to dismiss; neither of the enterprise arguments are compelling.

 B. Count I Does Not Improperly Allege Multiple Conspiracies in a Single Count

 Marcy and Roti argue that Count I impermissibIy alleges multiple conspiracies in a single count, and must be dismissed for that reason. Motion at 6. Similarly, they assert that Counts I and II are improperly joined (under Fed. R. Crim P. 8(b)) because there is no single conspiratorial agreement. Id at 13. Both of these contentions fail.

 Count I alleges an 18 U.S.C. § 1962(d) (1988) conspiracy. Section 1962(d) "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." United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371, cert. denied, 479 U.S. 940, 107 S. Ct. 422, 93 L. Ed. 2d 372 (1986). We recently reiterated that "'a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single "enterprise" conspiracy' in violation of § 1962(d)." United States v. Andrews, 754 F. Supp. 1161, 1169 (N.D. Ill. 1990) (quoting United States v. Sutherland, 656 F.2d 1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S. Ct. 1451, 71 L. Ed. 2d 663 ), cert. denied, 455 U.S. 991, 102 S. Ct. 1617, 71 L. Ed. 2d 852 (1982); cf. United States v. Walters, 711 F. Supp. 1435, 1447 (N.D. Ill. 1989) (RICO conspiracy charge upheld; "that the predicate acts may themselves be separate conspiracies does not invalidate the count"), rev'd on other grounds, 913 F.2d 388 (7th Cir. 1990).

 The fact that the "purported overt acts in furtherance of the conspiracy," Motion at 6-7, were spread out over several years, and that Roti is not alleged to have participated in all of the acts, is irrelevant. The indictment alleges that Roti (and Marcy) agreed to influence official decisionmaking through a pattern of racketeering; that "certain defendants" are charged "with substantially more conspiratorial activity than others" does not justify dismissal or a finding of misjoinder under Fed. R. Crim. P. 8(b). Andrews, 754 F. Supp. at 1169 (citing cases). Mere temporal breadth is similarly insufficient to counsel dismissal or a finding of misjoinder. Id. at 1164 (El Rukn enterprise's alleged acts committed over twenty-four year period, 1966-1989).

 We reject Marcy and Roti's three principal arguments. The government's indictment sufficiently alleges an enterprise, and does not impermissibly allege multiple conspiracies. Accordingly, we ...


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