United States v. Frank Altese, A/K/A Frankie Feets
This text of 542 F.2d 104 (United States v. Frank Altese, A/K/A Frankie Feets) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This is an appeal pursuant to 18 U.S.C. § 3731 from an order of the District Court dismissing, prior to trial, counts one and two of an eight count indictment alleging gambling and racketeering offenses in violation of the Organized Crime Control Act of 1970, 84 Stat. 922. The indictment charged twenty two defendants in the various counts, with count one charging sixteen of them w'th being associated with an enterprise engaged in interstate commerce and conducting its affairs through a pattern of racketeering activity and through the collection of debts in violation of 18 U.S.C. § 1962(c);1 all twenty two of the defendants were charged in count two with having conspired to violate Section 1962(c), in violation of 18 U.S.C. § 1962(d).2 The remaining counts, none of which are involved here, charged the conduct of an illegal gambling business in violation of 18 U.S.C. § 1955, and § 1952, obstruction of justice by two defendants in violation of 18 U.S.C. § 1510 and conspiracy to violate Sections 1955 and 1952. The counts under § 1952 and § 1510, being counts six and seven, were dismissed without objection of the government for failure to allege essential elements of the offenses.
The gravamen of the two counts before us (counts one and two) is that the named defendants had conducted a large scale gambling business through a pattern of racketeering activity and the collection of unlawful debts, as defined in 18 U.S.C. § 1961(1), (5) and (6).3
[106]*106The appellees claimed and the District Court held that Section 1962(c) applied only to a legitimate enterprise that was conducted through a pattern of racketeering activity or the collection of unlawful debts and not to an illegal gambling business. In so holding the district court held that Title IX of the Organized Crime Control Act, of which Section 1962(c) is a part, “deals with the problem of infiltration of legitimate business by persons connected with organized crime” and was not designed by Congress “to cover the types of activity charged in (counts one and two) of this indictment.” We disagree and reverse.
1. The Language of the Act:
We first note that each of the four paragraphs of Section 1962 begins with the all inclusive phrase: “It shall be unlawful for any person . . . ” who has received any income derived from any pattern of racketeering activity, etc., to use any part of such income in the acquisition of “any enterprise engaged in . interstate or foreign commerce.” (emphasis supplied). The word “any” is explicit. In addition, we note that in Section 1961 the Congress in defining the words “person” and “enterprise” again uses the word “any”. In the light of the continued repetition of the word “any” we cannot say that “a reading of the statute” evinces a Congressional intent to eliminate illegitimate businesses from the orbit of the Act. On the contrary we find ourselves obliged to say that Title IX in its entirety says in clear, precise and unambiguous language — the use of the word “any”4 — that all enterprises that are conducted through a pattern of racketeering activity or collection of unlawful debts fall within the interdiction of the Act. Congress could, if it intended any other meaning, have inserted a single word of restriction. Instead it left out the word and inserted a clause providing that the provisions of Title IX “be liberally construed to effectuate its remedial purposes.” 84 Stat. 947. We cannot — in the light of such language — hold that Congress did not say what it meant nor meant what it said.
2. The Cases on Title IX:
If the language of Title IX is not found to be so explicit as we hold it to be and we are obliged to construe the language of Title IX, we come out with the same result. As this Circuit held in United States v. Parness, 503 F.2d 430, 439 fn. 12 (1974)5 cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1974), we are obliged to construe the Act liberally. Indeed, Congress declared in the Act itself:
It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime. 84 Stat. 923.
These new penal prohibitions, enhanced sanctions, and new remedies clearly extend to an illegitimate business as well as a legitimate one; to read the Act otherwise does not make sense since it leaves a loop[107]*107hole for illegitimate business to escape its coverage.
We note that three other Circuits have reached this same result.6 United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974) cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638, 44 U.S.L.W. 3397 (1976), United States v. Hawes, 529 F.2d 472 (5th Cir. 1976), and United States v. Morris, 532 F.2d 436 (5th Cir. 1976). We are pleased to make it a foursome.
Reversed and remanded.
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542 F.2d 104, 1976 U.S. App. LEXIS 8197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-frank-altese-aka-frankie-feets-ca2-1976.