United States v. Frumento

563 F.2d 1083

Opinions

OPINION OF THE COURT

ROSENN, Circuit Judge.

Appellants Andrew Millhouse and John R. Sills were indicted in the United States District Court for the Eastern District of Pennsylvania for violations of 18 U.S.C. § 1962(c) and (d) (racketeering activity and conspiracy)¹ and 26 U.S.C. § 7206(1) (fraud and false statements in making and subscribing to federal income tax returns for the calendar year 1971 and 1972).² They were tried before a jury together with co-defendant Rocco Frumento and after a trial lasting almost two weeks were found guilty on all counts.³

I.

This case presents several important issues of first impression in this circuit growing out of a conspiracy to smuggle cigarettes into Pennsylvania for resale without payment of the Pennsylvania cigarette tax. During the period of the conspiracy, June 1971 through mid-March 1972, appellant Sills was in charge of patronage for Peter Camiel, chairman of the Philadelphia Democratic City Committee. Millhouse was the supervisor of the District II office of the Pennsylvania Department of Revenue’s Bureau of Cigarette and Beverage Taxes (“BCBT” or the “Bureau”). The district II geographic area comprised Philadelphia and its four surrounding counties. As the district supervisor, Millhouse had direct administrative control over all the investigators within his district.

The events here at issue began in 1971 with an effort by Sills to secure Frumento’s appointment to a position with the Bureau. While Frumento’s appointment was pending, Vito Pisciotta, a Philadelphia lawyer, introduced Frumento to his client, Harold J. Sharp, a Philadelphia cigarette wholesaler with prior convictions for felonies. In a series of meetings with Sills and Pisciotta, Frumento revealed a plan to import large quantities of untaxed cigarettes into the state of Pennsylvania, to affix counterfeit Pennsylvania tax stamps to them, and to provide “protection” to his accomplices through his position with the Bureau. Fru-mento informed Sharp that he expected the latter to act as the outlet for the untaxed cigarettes. It was agreed that Sharp would provide the necessary capital to purchase the untaxed cigarettes and Frumento and the others would obtain and transport the cigarettes into Pennsylvania, affix the counterfeit stamps, and deliver them to Sharp’s warehouse.

In August 1971, Frumento commenced the transportation of cigarettes from North Carolina to Sharp’s warehouse in Philadelphia from whence they were distributed and sold. Sills, Frumento, and Pisciotta were each to receive $1,000 weekly from the operation. About the time that the conspiracy began, Frumento was appointed a field inspector with BCBT. Within several weeks after the commencement of the conspiracy, Sills had effectively gained the ability to hire and fire personnel at the District II office of BCBT. Millhouse was offered, and accepted, the opportunity to participate in the smuggling operation at $500 per week. Roy Wade, a field inspector in BCBT under Millhouse’s jurisdiction, was later offered a similar opportunity to participate in the conspiracy at a figure of $200 weekly which he accepted.

The cigarette smuggling operation continued for about thirty weeks and terminated with the arrest of Harold Sharp on March 13,1972. In May 1972 the Commonwealth of Pennsylvania arrested Sills following a grand jury investigation and he, Sharp, Millhouse, and Frumento were charged under Pennsylvania criminal laws with bribery, extortion, and conspiracy, respectively. In June 1972, Sills, Frumento, and Millhouse stood trial in the Philadelphia Municipal Court on these charges and were found not guilty by Judge Calvin Wilson, Court of Common Pleas of Philadelphia County sitting as a municipal court judge.⁴ On May 22, 1975, the appellants were indicted in the United States District Court in an eleven count indictment on the charges described in the first paragraph of this opinion.

Of the series of issues raised on this appeal we believe only two warrant discussion: (1) Were Millhouse’s convictions on count I (substantive offense of racketeering) and on count II (conspiracy) of the indictment and Sills’ conviction on count II (conspiracy) of the indictment barred by the double jeopardy clause of the fifth amendment of the United States Constitution because of his prior acquittal in state court? (2) Is the Pennsylvania Bureau of Cigarette and Beverage Taxes an “enterprise” within the meaning of Title IX of the Organized Crime Control Act of 1970?

II.

Both appellants claim that their federal prosecution was barred by the double jeopardy clause of the fifth amendment^{5 6}to the Constitution. In considering a pretrial motion filed by the co-defendant, Frumento, who also asserted the same contention, the district court capsulized the factual basis for the appellants’ claim as follows:

In June 1972 [the defendants were] tried and acquitted in Philadelphia Municipal Court on the charges of bribery, extortion and conspiracy to accept bribes and avoid payment of the Pennsylvania cigarette tax. The state indictment was based on the same alleged activity as the present federal indictment, which charges that [the defendants] violated 18 U.S.C. § 1962(c) by engaging in the conduct of the Bureau’s affairs through a pattern of racketeering activity.

United States v. Frumento, 409 F.Supp. 136,139 (E.D.Pa.1976). The same operative facts apply to Millhouse and Sills.⁸

On the authority of Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959),⁷ the district court rejected the contention that successive state and federal prosecutions are barred by the double jeopardy clause; it also rejected the argument that the doctrine of collateral estoppel barred this prosecution. See Ashe v. Swen-son, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The Supreme Court and many United States courts of appeals which have had the occasion to consider the question have followed the general principle that a federal prosecution is not precluded by a prior state prosecution of the same person for the same act. In Abbate v. United States, supra, the Court again reviewed the issue. Petitioners in that case had been indicted and convicted in an Illinois state court for violating a state statute making it a crime to injure or destroy the property of another and were thereafter indicted and convicted in the federal court for conspiracy, in violation of a federal statute, 18 U.S.C. § 1362, to destroy certain communications facilities operated or controlled by the United States. The same misconduct was the basis of both convictions. Petitioners asked the court to override United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), wherein it had squarely upheld a federal prosecution arising out of the same facts which had been the basis of a state conviction. The Court, however, found no persuasive reason for departing from the firmly established principle to which we have just alluded. On the contrary, it observed that “undesirable consequences would follow if Lanza were overruled.” Abbate v. United States, 359 U.S. at 195, 79 S.Ct. at 671.

Millhouse and Sills argue that their prior acquittals in the Philadelphia Municipal Court on the very state law charges which formed the basis of their indictment under 18 U.S.C. § 1961 et seq. bars their trial and conviction on counts I and II. Section 1961, they claim, incorporates the state law charges in making it a crime to commit a pattern of state offenses. Specifically, they assert that count I of the indictment charges the same acts of bribery of which they were acquitted in the state court and that this distinguishes their case from Bart-kus v. Illinois, supra, and Abbate v. United States, supra, wherein the successive prosecutions were for violations of different statutes of different sovereigns. In the instant case, although the bribery of a state official is not a federal crime, they argue that 18 U.S.C. § 1961 et seq. makes it a federal crime, inter alia, to commit a “pattern” of state offenses in certain circumstances and, of necessity, gives the federal courts jurisdiction to try the underlying state offenses.

We have examined the cases cited by appellants but we do not find that any of them support their contention. Their principal case, United States v. Mason, 213 U.S. 115, 29 S.Ct. 480, 53 L.Ed. 725 (1909), expressly turned on the construction of a federal statute; it narrowly inquired into the meaning and scope of a citizen’s right to vote law. Mason had been acquitted in a state court of the murder of a federal officer. Subsequently, he was charged in a federal court with conspiring to hinder or obstruct federal officers in the exercise of rights secured to them under the laws of the United States and with committing the murder of a federal officer as part of the conspiracy. The conspiracy charge was in violation of section 5508 of the Revised Statutes as to which section 5509 provided that, “if in violating any provision of the two preceding sections any other felony or misdemeanor be committed, the offender shall be punished . . . with such punishment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed.” The appellants extrapolate and rely on certain language of the Mason court indicating the duty of a federal court to accept the judgment of a state court “based upon a verdict of acquittal of a crime against the state whenever, in a case in federal court, it becomes material to inquire whether that particular crime against the state was committed by the defendants on trial in the federal court for an offense against the United States.” Mason, however, is neither a double jeopardy nor a collateral estoppel holding. The murder at issue in Mason did not constitute an offense against the United States. Mason did not hold that a federal indictment predicated upon state offenses was barred by a prior state acquittal.⁸

Contrasted with the murder offense examined in Mason, the conduct with which the present appellants were charged in the state courts did offend the United States. Section 1961 et seq. of the Federal Racketeering Act forbids “racketeering,” not state offenses per se. The state offenses referred to in the federal act are definitional only; racketeering, the federal crime, is defined as a matter of legislative draftsmanship by reference to state law crimes

8A This is not to say, as the dissent suggests, that the federal statute punishes the same conduct as that reached by state law. The gravamen of section 1962 is a violation of federal law and “reference to state law is necessary only to identify the type of unlawful activity in which the defendant intended to engage.” United States v. Cerone, 452 F.2d 274, 286 (7th Cir. 1971), quoting Mr. Justice Clark in United States v. Karigiannis, 430 F.2d 148,150 (7th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). The Cerone court, which considered the relationship between federal and state statutes in the context of the Travel Act, 18 U.S.C. § 1952 stated:

[The federal statute] does not enlarge state criminal statutes at all because it punishes the use of facilities in interstate commerce in furtherance of enterprises violative of state statutes; it does not punish substantive violations of the state statutes per se.

452 F.2d at 286-87.

Millhouse and Sills also seek to demonstrate that it would require a “significant expansion” of the dual sovereignty doctrine on which Abbate v. United States and Bart-kus v. Illinois were based⁹ to affirm the convictions on counts I and II of the indictment in this case; the dual sovereignty doctrine, they say, has been eroded in recent years and is no longer accepted. At oral argument counsel for Millhouse was specifically asked whether his research disclosed any Supreme Court case that has modified or diluted Abbate and he could point to none.

Appellants’ briefs in this court point to the decisions of the Supreme Court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), in support of their thesis that the dual sovereignty doctrine as it applies to successive federal and state prosecutions is no longer good law. We find that none of these cases deal with dual sovereignty as a theory under which different jurisdictions can prosecute related crimes but rather with the question of whether the doctrine of dual, sovereignty may serve to avoid infringements of constitutional rights. Moreover, the fact is that Abbate has been consistently followed by courts of appeals since 1959, and the Supreme Court has routinely denied certiora-ri.¹⁰

The facts of the instant case do not require any expansion of the dual sovereignty doctrine as suggested by the appellants. On the contrary, the appellants’ conduct, even though it may have involved the same operative facts considered in the state court, also contains an additional element of significance to the federal courts though not the state court — the effect of their state operation on interstate or foreign commerce through a pattern of racketeering activity.¹¹ The facts of this case amply support the pragmatic wisdom of the Ab-bate holding, and in view of Abbate we reject appellants’ double jeopardy claim.

III.

Counts I and II of the indictment identify the Bureau of Cigarette and Beverage Taxes, an agency of the Commonwealth of Pennsylvania as having constituted an “enterprise” as defined by 18 U.S.C. § 1961(4) which enterprise was engaged in, and the activities of which, affected interstate commerce. That section of the Act defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” Millhouse and Sills contend that a reading of Title IX of the Organized Crime Control Act of 1970 as a whole, including section *1961, reveals that the term “enterprise” cannot be construed to embrace a state taxing and enforcement agency such as the Bureau.

The district court, initially in its pre-trial orders, United States v. Frumento, 405 F.Supp. 23 (E.D.Pa.1975), concluded that the Bureau was an arm of the Department of Revenue charged with the statutory duty to collect taxes imposed by law upon the sale of cigarettes in Pennsylvania. 72 P.S. § 203(n). It therefore held that the Bureau was a “legal entity” and thus an “enterprise” within the definition of the Organized Crime Control Act of 1970.

Appellants vigorously assert on appeal that a reading of the statute, 18 U.S.C. § 1961 et seq., supports their contention that the term “enterprise” was never intended to include governmental organizations. First, they say violations of section 1962 not only gave rise to criminal penalties, but the district courts of the United States are also given extensive civil remedy powers in the event of violation of the statute, including the power to order dissolution or reorganization of any “enterprise,” 18 U.S.C. § 1964;¹² and that Congress could not have intended to give the courts the power to order dissolution or reorganization of a state agency. Secondly, appellants argue that since section 1964(c) permits private persons to sue and recover treble damages for violations of section 1962, Congress could not have intended, in view of the limitations of the eleventh amendment, to allow suits against state governmental bodies. Finally, appellants argue that in construing the statutory definition of “enterprise,” the phrase “other legal entity” following nouns of narrow scope relating to different forms of business ventures, must be construed under the rule of ejusdem generis in the light of the narrow terms which follow. Thus, the words of the final clause in the definition dealing with nonlegal entities indicate Congress intended to limit the term “enterprise” to private business or labor organizations.

Appellants also take comfort in the absence of any reference to governmental bodies in the legislative history of the Organized Crime Control Act of 1970. In this respect, they rely heavily in support of their position on United States v. Mandel, 415 F.Supp. 997 (D.Md.1976). The district court in that case concluded that the silence of the legislative history of Title IX of the Organized Crime Control Act as to whether an enterprise may include such public entities as governments and states suggests a narrow construction of the statute. Since the major purpose of Title IX is “to rid racketeering influences from the commercial life of the nation,” the district court believed that reading “enterprise” to include public entities would do violence to the plain purpose of Title IX. Thus, predicating its decision on its analysis of the legislative history, the purpose of Title IX and the doctrine of ejusdem generis, the court held that the state of Maryland was not an “enterprise” within the meaning of the racketeering statute. We disagree.

We begin our discussion with an assessment of the ejusdem generis doctrine. It is not a rule of law but merely a useful tool of construction resorted to in ascertaining legislative intent. The rule should not be employed when the intention of the legislature is otherwise evident. Commonwealth v. Brady, 228 Pa.Super. 233, 323 A.2d 866, 870 (1974). Nor should it be applied to defeat the obvious purpose of the statute or to narrow the targets of Congressional concern. “The rule of ‘ejusdem generis’ is applied as an aid in ascertaining the intention of the legislature, not to subvert it when ascertained.” Texas v. United States, 292 U.S. 522, 534, 54 S.Ct. 819, 825, 78 L.Ed. 1402 (1934). For reasons to which we later advert, it is apparent that Congress intended the general words defining an “enterprise” in § 1961(4) to go beyond the specific reference to private business or labor organizations.

As we read the Organized Crime Control Act, Congress was not so much concerned with limiting the protective and remedial features of the Act to business and labor organizations as it was with reducing the insidious capabilities of persons in organized crime to infiltrate the American economy. This accounts for the new civil remedies in the Act which permit equitable restraint of economic activity engaged in by organized crime as a substitute for criminal prosecution with its attendant procedural and constitutional protection for defendants. See Note, Infiltration of Legitimate Business, 124 U.Pa.L.Rev. 192, 196 (1975). In other words, Congress’ concern was enlarging the number of tools with which to attack the invasion of the economic life of the country by the cancerous influences of racketeering activity;¹³ Congress did not confine its scrutiny to special areas of economic activity. Congress had no reason to adopt a constricted approach to the solution of the problem. Congress was concerned with the infiltration of organized crime into the American economy and to the devastating effects that racketeering activity had upon it.¹⁴ Yet, we are asked to believe that Congress’ approach to a monumental problem besetting the country was myopic and artificially contained. Is it conceivable that in considering the ever more widespread tentacles of organized crime in the nation’s economic life, Congress intended to ignore an important aspect of the economy because it was state operated and state controlled? We think not. Congress declared that the provisions of Title IX “be liberally construed to effectuate its remedial purposes.” 84 Stat. 947.

In its statement of the broad purposes of the Act, Congress evinced no reason why governmental agencies which had been infiltrated by organized crime should be immune from the reach of the Act. In fact, in Pennsylvania the Commonwealth is engaged in several of the largest and more affluent business operations in the state, each of which involve many millions of dollars. The Commonwealth of Pennsylvania purchases, distributes, and sells alcoholic beverages legally consumed among its more than 12,000,000 citizens;¹⁵ it sells and distributes games of chance through its much touted lottery system.¹⁶ The constricted reading of the statute advocated by the appellants makes little sense; private business organizations legitimately owned and operated by the states, even though their activities substantially affect interstate commerce, would be open game for racketeers. We refuse to believe that Congress had such “tunnel-vision” when it enacted the racketeering statute or that it intended to exclude from the protective embrace of this broad statute, designed to curb organized crime, state operated commercial ventures engaged in interstate commerce, or other governmental agencies regulating commercial and utility operations affecting interstate commerce.¹⁷

We also find support for our view in the congressional findings underpinning the legislation. Although Congress does refer in one of its findings to the increasing use of money and power to infiltrate and corrupt legitimate business and labor unions, its findings also note concern for all of “America’s economy” from which organized crime in “highly sophisticated, diversified, and widespread activity" annually drains billions of dollars and weakens “the stability of the nation’s economic system.” These findings sensibly dwell upon the total American economy, not segments of it. Furthermore, the House Report on section 1962 observes that through three subsections it establishes “a threefold prohibition aimed at stopping the infiltration of racketeers into legitimate organizations.” House Report No. 1549, 91st Cong.2d Sess. 39 (1970), U.S.Code Cong. & Admin.News, 1970, p. 4033. The report addresses not only private business organizations and unions, but speaks to legitimate organizations¹⁸ as a class. We therefore hold that a state agency charged with the responsibility of enforcing the tax laws on an interstate industry engaged in importing cigarettes from points outside the state is an enterprise within the meaning of 18 U.S.C. § 1961(4).

IV.

We have carefully reviewed each of the other contentions made by appellants and find them without merit.¹⁹

The judgments of the district court will be affirmed.

1 . 18 U.S.C. § 1962(c) and (d) provide:

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.

2 . Sills was charged with conspiracy to violate section 1962(c) but not the substantive offense. Millhouse was charged with violating both the conspiracy provisions of 1962(d) and the substantive offense described in 1962(c). Both defendants were also charged in two counts each with filing false income tax returns.

3 . Although their convictions on income tax counts are not directly attacked by the appellants, they argue that a new trial also is required on the income tax counts because of the improper and prejudicial introduction of evidence on the other counts. United States v. DeCavalcante, 440 F.2d 1264, 1276 (3d Cir. 1971).

4 . In Millhouse’s case, the charging papers alleged that Millhouse did “during the period August 6, 1971, to March 1972 being at the time an officer of the Commonwealth, to wit, Supervisor, Region # 2, Bureau of Cigarette and Beverage Taxes, take a reward or fee from Harold J. Sharp by color of his office, said fee or reward not being allowed by law.” .

5 . The double jeopardy clause of the fifth amendment provides:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ....

6 . Although the appellants have each filed separate briefs, we consider their contentions jointly except where otherwise indicated.

7 . On the day the United States Supreme Court decided Abbate, supra, it also decided Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1958), in which it held that a state prosecution for violation of its penal law against bank robbery was not barred under the due process clause of the fourteenth amendment because of a prior acquittal for a federal offense on substantially the same evidence.

8 . Mason has been cited rarely in its 68-year history and appellants cite no case adopting their interpretation.

. In arguing that the acts of these defendants were not “chargeable under State law and punishable by imprisonment for more than one year” since both defendants had been acquitted in state court, the dissent misconstrues this definitional purpose. Section 1961 requires, in our view, only that the conduct on which the federal charge is based be typical of the serious crime dealt with by the state statute, not that the particular defendant be “chargeable under State law” at the time of the federal indictment.

9 . A historical analysis of the genesis of the dual sovereignty doctrine and the culmination of its development are found in Abbate v. United States, 359 U.S. at 190-94, 79 S.Ct. 666. Also quoted in that analysis is a succinct statement of the doctrine expressed by Chief Justice Taft writing for a unanimous court in United States v. Lanza, 260 U.S. at 382, 43 S.Ct. at 142:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government, . . . and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.

10 . See, e. g., United States v. Villano, 529 F.2d 1046, 1060-61 (10th Cir. 1976); United States v. Johnson, 516 F.2d 209 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975); United States v. Vaughan, 491 F.2d 1096, 1097 (5th Cir. 1974); United States v. Jackson, 470 F.2d 684 (5th Cir.), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1972); United States v. Barone, 467 F.2d 247, 250 (2nd Cir. 1972); United States v. Hutul, 416 F.2d 607, 626 n. 35 (7th Cir.), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970).

11 . The appellants’ contentions depend upon their acquittal rather than their conviction in the state court and it might be argued that they actually are raising a collateral estoppel claim. As the appellants concede in the briefs in this court, the dual sovereignty doctrine applies to successive federal and state violations of separate and distinct federal statutes. “It never required identity of prosecuting parties as does the doctrine of collateral estoppel.” Millhouse brief, p. 20, United States v. Johnson, 516 F.2d 209, 211-12 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975); Ferina v. United States, 340 F.2d 837-39 (8th Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965).

12 . The pertinent provisions of 18 U.S.C. § 1964 provide:

(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

(c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fees.

13 . Congress stated that the purpose of the Act is “to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process by establishing penal prohibitions and by providing sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” 84 Stat. 923.

14 . A recent report of the Advisory Commission on Intergovernmental Relations describes the pattern of cigarette bootlegging that has been developing for the past decade and the link between bootlegging and organized criminal elements. The Commission states inter alia :

“In [about a dozen states mainly in the East and Midwest] cigarette smuggling is a multi-million dollar business, organized crime syndicates are heavily involved, and there are many victims. State and local governments lose millions of dollars; taxpayers pay higher taxes or receive fewer services; cigarette wholesalers and retailers are driven out of business and jobs are lost; political and law enforcement officials are corrupted; trucks are hijacked and warehouses raided; and people are injured and even killed.”

“The profits from organized smuggling of cigarettes are enormous. The Council Against Cigarette Bootlegging estimates that the illegal profits in eight eastern states were about $97.9 million in fiscal year 1975-76. The profits from cigarette smuggling are used by organized crime to finance other illegal operations, such as drugs, loan sharking, and gambling. These profits are earned at the expense of State and local governments, which, according to the Council, lost an estimated $170.7 million in revenues in the eight eastern States (Connecticut, Delaware, Maryland, Massachusetts, New York, New Jersey, Pennsylvania, and Rhode Island), and the tobacco industry (wholesalers and retailers), which lost an estimated $470 million in sales.”

(Footnote omitted.)

Advisory Commission on Intergovernmental Relations, Cigarette Bootlegging: A State and Federal Responsibility 20-20 (1977).

15 . The Commonwealth of Pennsylvania operated 752 retail liquor stores from July 1, 1970 to June 29, 1971, inclusive and the store sales for that period amounted to $474,010,000; it operated 757 stores from June 30, 1971 to June 27, 1972, inclusive and the store sales for that period amounted to $496,590,000. Table , 40, Pennsylvania Statistical Abstract 1976, 18th ed.

16 . The Commonwealth of Pennsylvania commenced its lottery operations in 1972. For its first fiscal year ending June 30, 1972, it generated ticket sales amounting to $50,452,000. For its fiscal year ending June 30, 1973, its lottery ticket sales amounted to $118,801,000. Table 167, Pennsylvania , Statistical Abstract 1976, 18th ed.

17 . Most courts that have construed section 1962 have taken a broad and expansive view of the statute. United States v. Altese, 542 F.2d 104 (2d Cir. 1976) (applied to illegal activities); United States v. Morris, 532 F.2d 436 (5th Cir. 1976); United States v. Cappetto, 502 F.2d 1351 (7th Cir.), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975) (applied to illegal activities); United States v. Pamess, 503 F.2d 430 (2d Cir.), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975) (statute applied to foreign corporations) (applied to enterprise though its activities may not be legitimate).

18 . Senator McClelland also provided a synopsis of the bill during the debates in which he also pointed out that title IX “[p]rohibits infiltration of legitimate organizations by racketeers . where interstate commerce is affected.” 116 Cong.Rec. 585 (1970) (emphasis supplied).

19 . Appellants contend that the district court also erred in the following respects: (1) admitting evidence that appellants received other unrelated bribes; (2) admitting evidence of the witness Leroy Wade over objection that Mill-house told him that co-defendant John R. Sills told him that the chairman [of the City Democratic Committee] said they had better get out of the cigarette business; (3) in denying appellants’ motion for a mistrial based on the fear expressed by some of the jurors that co-defendant Rocco Frumento was staring at them.

Sills separately contends in addition that the district court erred: (1) in not granting him a severance where his two co-defendants were his chief witnesses and where there was an obvious gross disparity in the quantum of evidence to be produced and where evidence of criminal acts similar in nature were unrelated to the offenses charged was being introduced against the two co-defendants; (2) in repeatedly referring to Sills as a co-conspirator and repeatedly referring to statements admitted into evidence against him as statements of a co-conspirator made in furtherance of the conspiracy; (3) in denying Sills’ motion for a new trial based on the prosecuting attorney’s deliberate deception in his closing argument.

Finally, Millhouse separately contends that the prosecuting attorney’s closing argument improperly called upon the jury to make an inference against him because he did not take the stand and explain the evidence against him.