|Article 1: This is one of the most important documents that Mr. Quig posted on his website, an actual transcript of the court document of Joe Bonanno Sr's deportation hearing on Dec. 16, 1954, listing the hearing participants of Evo DeConcini, Tom Chandler, Paul Cella & the Judge Walsh. There are several things that stand out in this short file, but the most important is how Joe Sr. used his arm of control over the court proceeding and had his last name listed for the first time listed as BoNNano instead of BonaNNo, thus giving him two identities. It is my view that the switching of the N's is most important because it was a pre-planned ordeal to start his official separation from the fall guy organization Joe BonaNNo Sr. helped establish in 1931, namely the Cosa Nostra. With the 1964-69 Banana wars, Mr. Bonanno accomplished everything he had planned with the changing of the spelling of his last name in 1954. The national media highlighted “his propaganda” of the struggle Don Pappino's was having against the new Commission members, and his total break away from this Americanized Cosa Nostra when he “supposedly” retired in 1969. You can read more on this subject and time-line of events in my memoirs on page three of this website, but I felt it was very important for all to see the documented Court hearing below.|
Since it seems to be in fashion for top Arizona public officials like Governor Fife Symington and Senator John McCain to pay honor to Godfather Joe Bonnano, we thought readers might enjoy the transcript of a deportation hearing where none other than the father of our illustrious ex-senior Senator Dennis DeConcini laid his reputation on the line to save the Godfather. Bonnano is named in the DRUG ENFORCEMENT AGENCY's official history of organized crime as the "principal architect of the French Heroin Connection, the chairman of the 5 families of New York, and founder of La Costa Nostra". Since Bonnano originally entered the United States illegally, the U.S. Customs had a pat case prepared to deport him. That was before Evo Deconcini went to bat for his close friend. Dennis went on to become co-chairman of the Senate Narcotics Control Committee.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA,
MR. ROBERT ROYSLTON
For the Plaintiff
MR. THOMAS CHANDLER & MR. PAUL CELLA
For the Defendant
The above-entitled matter came up for hearing on Bill to Cancel Naturalization, on the 16th day of December, 1954, at Tucson, Arizona, before the HON. JAMES A WALSH, United States District Judge, and the following is a partial transcript of proceedings had, to wit:
EVO DE CONCINI
called as a witness herein, having been first duly sworn, testified on his oath as follows:
BY MR. CHANDLER:
Q: Would you state your name, please?
A: Evo De Concini.
Q: Where do you live, Mr. De Concini?
Q: How long have you lived in Tucson?
A: Thirty-four years.
Q: During the period of time that you have lived in Arizona have you held any particular public jobs or positions?
A: Yes, I have.
Q: Would you tell me very briefly what they were?
A: I was judge of the Superior Court for six years, Attorney General for one year and four years on the Arizona Supreme Court as one of the justices.
Q: That goes without saying then you are an attorney and member of the bar of this state?
A: Yes, I have been a member for a little over twenty years.
Q: Are you acquainted with Mr. Joseph Bonnano, the gentleman who sits here?
A: Yes, I know him.
Q: How long have you known Mr. Bonnano?
A: Since 1942 or '43, but I think it is 1942.
Q: Where did you meet him?
A: Met him at the Old Pueblo Club at a luncheon.
Q: That is here in Tucson?
A: In Tucson, yes.
Q: Have you seen him frequently since that time?
A: Yes, I have.
Q: Have those times of seeing him been periodic, regular, or how would you classify them, Judge?
A: Well, periodic because I was living in Phoenix for five years and during those years I didn't see him very often. Occasionally, when I came down to Tucson I would see him and in Phoenix when he came to my office, and once to my home.
Q: Do you have mutual acquaintances?
Q: Are there few or many mutual acquaintances?
A: There are quite a few. Mr. Anderson just testified whom I have known; Mr. Bill Anthony, the furniture man, and there are a number, like Joe Vantone (phonetic), members of the American-Italian Club, and a retired doctor; a Dr. Meknay (phonetic), and Gus Patella (phonetic) from Eloy, a very close friend of Mr. Bonnano's and a friend of mine. (Editor's comment: It is very unusual for phonetic spellings to be found in court transcripts.)
Q: Are there others you have not mentioned?
A: Yes, there are a number of people in town in business whom I know. I know Mr. Barry -- one of the salesmen --
MR ROYLSTON: If I may interrupt, Judge, I object to naming these mutual acquaintances. I have no objection they have numerous ones, but I think who they are and what they do is immaterial.
THE COURT: The objection will be sustained.
Q: (By Mr. Chandler) Judge, are you acquainted with Mr. Bonnano's reputation in this community for truth and veracity?
A: Yes, I am.
Q: What, in your opinion, is his reputation for truth and veracity?
A: I believe it is very good. In fact, I believe it is excellent.
MR. CHANDLER: Cross-examine.
MR. ROYLSTON: No questions.
DE-CENTRAL INTELLIGENCE AGENCY
P.O. Box 58,
Tempe, Arizona 85280
(C) 1996 Intelligence Connection
ARTICLE 2: Is another power point on the Arm of the Old Don reaching out to a court of law in Phoenix, which is self explanatory and very good reading on the corruption of Arizona Political & judicial system.
In all my life I can count the lawyers that I have known who have not been blood sucking parasites on one hand. Like prostitution, there is something innate in the very nature of this work which militates against the possibility that one will find a practitioner with a heart of gold. The more injustice one finds in the courts the more one needs and will pay a lawyer. Therefore the creation of injustice is synonymous with the self interest of lawyers. To expect lawyers to reform judicial process is equivalent to expecting the HIV virus to cure AIDS.
The Arizona Bar Association is a sewer. None-the-less it has produced Chief Justice of the U.S. Supreme Court William Rendquist and the nation's first female Associate Justice, Sandra Day O'Connor --- and just wait and see if former Arizona Governor Bruce Babbitt does not become Clinton's next nominee for the High Court. What is it about Arizona that prepares so many for the high court?
Each year, at their annual convention, the Arizona Bar Association pays tribute to a single deserving member by bestowing the Walter E. Craig Award. I call this the Walter E. Craig Award For Excellence In The Pursuit of Judicial Bribery. Judge Craig reversed a jury's guilty verdict on three counts of murder-for-hire delivered against Joe Bonanno Jr. Judge Craig felt that the jury was prejudiced by the defendant's father's reputation as a ruthless gangster closely associated with the narcotics industry. The Francis Ford Copula films, Godfather, I, II, III were modeled after the Bonanno family. According to the official DEA history of organized crime, Joe Bonanno was "the principal architect of the French Heroin Connection".
Michael Wendland, in The Arizona Project, the landmark work on high level organized crime corruption in Arizona, notes that on the morning preceding this unusual verdict reversal Joe Bonanno's best friend, Peter "Horse Face" Licavoli (Detroit Purple Gang) was making a spectacle of himself as he went from bank to bank assembling $25,000 in cash. Because he got there so early, none of the banks had very much cash on hand --- forcing the very recognizable "Horse Face" to patronize more than 5 banks. At one bank the "Horse Face" let it slip that he needed the money for something of enormous importance to his close friend Joe Bonanno. Is there some logic in expecting to find such a top narcotics gangster living in the one state that trafficks more narcotics than any other state in the nation?
Wendland waxes so eloquent in his account of the verdict reversal that it is not possible to paraphrase him without losing the power of his expression. What he is saying should be utterly shocking for readers in other parts of the country. I quote from page 176 of the first edition of Wendland's ARIZONA PROJECT, "It is highly unusual for a judge to toss out a jury verdict, especially more than a month after the verdict has been handed down. It is virtually unprecedented for a judge to do so without polling the jury as to why they convicted. But that was precisely what Judge Craig did. He simply assumed that he knew what the jury's thought process had been without talking to its members. Then he arbitrarily freed the defendant."
"IRE reporters decided to go back and talk to some of the principals in the case. John Rawlinson, Tucson Star, interviewed jury member Robert W. Clark. Four years latter Clark was still furious about the judges's unexplained reversal. He had been so angry at the time that he had written letters of complaint to the U.S. Supreme Court, U.S. Attorney General Richard Kleindienst (from --- you guessed it --- Arizona.) and Senator Barry Goldwater, charging that Craig's conduct during the trial had been "anything but impartial."
"The foreman of the jury was Jerry Boyd, a Phoenix gas station owner. Rawlinson asked him the reaction to Craig's sudden reversal of the guilty verdict. "We were flabbergasted," said Boyd. "I mean it was an real insult to us. How could he know what we were thinking? The whole jury was convinced of his guilt." Boyd reported that he had been told by several jurors that they had received threatening phone calls during the trial and that one of the male jurors had been followed home after court one day."
Mr. Boyd goes on to say how the very next day after the jury returned its guilty verdict several jurors went to work to find large holes shot into their places of business. On this fatal day Boyd relates how a stolen lumber truck rammed the car of another juror gasing up at Boyd's station. A fake ambulance showed up to whisk away the truck driver who was never seen again. Ann Bowen, the assistant U.S. Attorney who prosecuted young Bonanno, was also incensed and stated that Craig "deliberately attempted to scuttle the trial."
Prior to this infamy, Judge Craig was selected to do the judicial review of the procedures of the Warren Commission On The Assassination of President John F. Kennedy. It is fairly elemental that murder is a state crime and that the federal government had no jurisdiction to prevent state proceedings as it illegaally did. This and hundreds of other irregularities eluded Judge Craig who gave the Warren Commissioners his seal of approval. More can be said about Judge Craig but I believe this suffices to illustrate what is the moral standard that is venerated by the Arizona Bar Association.
Paranoia is the cutting edge of the realization that all things are connected. The same model of political control in Arizona can be discerned at the national and international level. With $15 billion of narcotics money coming into Arizona from the south and $3 billion skim money coming in from the Las Vegas Casinos in the north, given a population of little more than 3 million, it simply must be expected that corruption in Arizona will be more pronounced that in any other state. None the less, look in your own community, no matter where that may be, and I dare say you will find the same things going on.
Phoenix has an afternoon newspaper, The Phoenix Gazette, and a morning paper, The Arizona Republic, both owned by the family of former Vice President, Dan Quayle. The largest stockholder in Channel 10 TV, the CBS affiliate, is Carl Lindner, who was much more culpable than Charlie Keating in the looting of S & Ls. The radio talk station in Phoenix KFYI was started by Fred Weber who was in the beer business with Gene Hensley, father-in-law to Senator John McCain (and formerly general manager for political king maker, Kemper Marley). It is easy to see how and why these sources would sanitize the news.
But wait. There is an alternative newspaper in Arizona called the New Times. This left leaning, music and entertainment orientated tabloid is offered as a give away and within about a day 450,000 copies are completely taken. Most people in Arizona believe this scandal hungry rag constitutes some kind of check on corruption and is evidence of the existence of free speech. That is because they have no idea of how or why the New Times was set up.
Referring back to Wendland's classic work, The Arizona Project, we learn that the New Times was founded by none other than Mark Harrison, at the time the president of the Arizona Bar Association! What is remarkable about the timing of this is the synchronous arrest of Harrison for attempting to set up a call girl ring with a high priced madame. Phoenix police intercepted and taped phone conversations between this madame and Harrison wherein Harrison stated that it was his intention to "work the Arizona Bar conventions and compromise judges and legislators". How convenient. One business to create scandal and one to expose it. If the reader thinks this incident is being blown out of proportion it should be noted that Harrison's best friend, the state attorney general, was forced to resign over this.
I must digress to point out that Phoenix was the headquarters of General John Singlaub's American affiliate of the World Anti-Communist League. So please note this model. There is right wing agitation and left wing agitation with the Attorney General's office and the Bar Association smack dab in the middle. See if you do not find this model in your own community.
All this is indeed an impressive record of moral depravity. Still, I believe from what I have recently seen of the ongoing trial of Jonathan Doody for the murder of the 9 buddhist monks reaches even a new low for Arizona. As I attend this trial I can not shake from my mind the thought that all of the attorneys in the court room, including the judge and all of the top representatives of law enforcement are as convinced as I that this 17 year old is innocent. None-the-less the machinery of conviction rolls relentlessly onward.
In previous columns I have written about how important elections are fixed. Next month my column, Standing Behind the Magician, will detail how important trials are fixed ---- using this trial as a text book example.
As a starter, there are two stipulations going into the trial. First narcotics cannot be mentioned as a possible motive. Second, the name Lamthong --- AKA Smith Thongkam --- the local Thai leader who was a fugitive on a $10 million dollar heroin possession conviction at the time of the murders can not be mentioned!!! Great! the defense council Peter Baukin, can not reference a principal party with a motive 1,000 times more plausible than the one the state assigns to Doody. Furthermore, Baukin supoenaed 3 officials of DEA and they REFUSED to come. They claim their testimony would "uncover valuable assets in the field". Unbelievably the court is having it both ways --- flatly it stipulates that narcotics had nothing to do with the crime but exempts DEA agents from testifying because they would reveal "valuable assets" by telling what they know!!
I am the only out of town coverage of this trial. On most days I am the only newsperson in the gallery --- which is empty except for two relatives of the victims and Doody's grandmother who sits next to Doody's teenage brother and little sister. I have seen only 4 different news people who spend less than a half hour at a time in the court room. There are many local blow hard patriots who are very upset with far away events in Waco, Texas and Ruby Valley, Idaho. I could persuade not a single one of them to attend the most infamous mass murder trial in Arizona's less than pristine history.
Law enforcement in Arizona has a long history of being better at extracting confessions than in actually apprehending real criminals. The Miranda rights are a result of a Supreme Court decision of such an abuse of constitutional rights case originating in Arizona. In the Temple Murders case law enforcement was able to extract confessions from essentially everyone they worked upon. Now they have more than 10 confessions and only two parties are on trial. The other 8 are rulled out as not possibly involved. In most communities this would be embassasing. Here it seems to be par for the course.
I thought it most telling that when I remarked that I was attending the trial, on two different occasions friends remarked, "Well I guess this is the last we will be seeing of you". The anticipation was that I would be dragged into a back stair way in the Superior Courts Building and never seen again. In Arizona anything is possible.
DE-CENTRAL INTELLIGENCE AGENCY
P.O. Box 58,
Tempe, Arizona 85280
(C) 1996 Intelligence Connection
Article 3: This article is written by another truthseeker like Mr. Quig in Robby Grondale, it is fascinating reading and makes the blunt point of Joe Bonanno's family was already making its move away from all others in America by taking complete control of the Sicilian drug trade, but also Joe Bonanno letting all of the major familys of the Sicilian Mafia kow that he is THE GODFATHER of all and that the Sicilian Don's there would control Sicily with a Commission that served under his ARM of power from his new base in Tucson. The thing that struck me the hardest on this meeting is 10 days after they met, Albert Anastasia was gunned down at the Grasso barbershop and then just a couple of months later almost all the Cosa Nostra leaders were busted in Appalachian, NY. Obviously at the Palermo meet with only the Bonnano's being represented from America these events were put in motion and the Je Bonnano Sr's plan of being the Global Godfather by 1969 was moving ahead as planned.
A Meeting Must Take Place.
By Robby Grondelle
The personel was busy that day. They were sweating like hell. A lot of important guests are comming, they were told. They didn´t have a clue of who they where. The Grand Hotel des Palmes, or in Italian Albergo e delle Palme, was put on high alert.
A meeting must take place. The idea came from Charlie Luciano. He was in 1957 still the top boss of the American Mafia, while living in Napoli and Palermo in excile. His power was not as it was, how could that be living that far away, but all the bosses came to him for advise. The American Mafia was heavy in dealing drugs, in fact the five Family´s from New York had 95% of the heroine trade under control for all the USA. A lot of members were arrested because of this. One in every three members of the Bonanno´s, one in every three members of the Colombo´s, one in every two members of the Genovese´s, two in every five members of the Gambino´s and three in every five members of the Lucchese Family. They had serious problems. Not only this, but the U.S. Congress passed in 1956 a severe Narcotics Control Act. It meant that, if cought, you could get 40 years in prison. Enough, is enough said Luciano. The man on the other end of the ocean, who agreed with him was Joe Bonanno.
A meeting must take place. A meeting between the two Mafia´s. A meeting in Palermo. A meeting that would have much inpact on both the Mafia´s. For the Sicilians much good, but for the Americans….
WHO WERE PRESENT.
The meeting was from October 10 till 14th 1957. From the American delegation the following men were present: from the Bonanno Family, Joe Bonanno, boss , Frank Garafolo, underboss, Carmine Galante, consigliere, and John Bonventre, capo. From the Buffalo Family, Antonio, Giuseppe and Gaspare Maggadino. From Detroit, John Priziola and Santo Sorge. What strikes you most about this delegation is that Joe Bonanno only took his Administration and cousins, the Maggadino brothers with him. Santo Sorge was cousin from Don Genco Russo, the most important boss from Sicily. Ofcourse was Charlie Luciano also present. Not only that, but there was nobody else from the Commssion. Kinda strange. Maybe because at the time Joe Bonanno already saw himself as the chairman of the board and trusted only his top aids and family. He was important. When he arrived in Rome, the Italian foreign trade minister, Bernardo Mattarella was waiting for him. Even a red carpet was rolled out for him. The minister came from the same village in Sicily as Joe Bonanno; Castellamare del Golfo.
The Sicilian delegation were: Genco Russo, Salvatore ‘Cichiteddu’ (Little bird) Greco from the Ciaculli Family, Calcedonio DiPisa, his underboss, the La Barbera brothers from the Porta Nuova Family, Geatano Badalamenti from the Cinisi Family and Tommaso Buscetta, also from the Porta Nuova Family.
WHAT´S ON THE AGENDA?
Since no Mafia member ever told about this meeting, we can only quess what was on the agenda. When you look at the Mafia closely after the meeting, some of the topics become clear.
The drug trade.
It was decided that the Sicilian Mafia would handle the entire heroine shipment to the USA.
The Sicilian soldiers had no mug shots, no fingerprints and no background. They would bring the drugs from Asia to Sicily, from there to the USA, ready to be picked up by Sicilian Mafia soldiers operating in the USA.
The Sicilian Commission.
Because the Commission in the US worked very good, the Americans advised that the Sicilians should do the same. After the meeting they did just that. Not only a national Commission, but also a Commission on a Provencial scale. But the national one was the most important and was called the Cupola. The Sicilian Mafia, just finished the take over of Palermo. They mainly came from small towns or villages.
The Anastasia problem.
Albert Anastasia was the head of the Gambino Family in New York. He was a friend of most bosses around the USA, including Luciano. But in 1957 Albert was running amok. Luciano said: He was of his rocker! It was at this meeting, that they decided to kill Albert. He was shot to death 10 days after the meeting. Carlo Gambino took his place.
A Cosa Nostra member from one country could visit his friends or relatives in the other country, but could do no ‘work’ while he was there. If they did want to ‘work’ they would have the boss OK where they want to operate. This was a mistake for the Americans. The Sicilians at American and Canadian soile who came after the meeting for the drug trade, became later in years too much of a presence. When Paul Violi, a capo from the Bonanno Family who had a crew in Montreal, said to one of the Sicilians that they could do no ‘work’ here, he was shot to death by the Sicilians.
The Americans did not see the treachery of their Sicilian counterparts.
In America the Sicilian Mafia ‘worked’ most on the turf of the Bonanno´s and Gambino´s.
They were called ‘zips’. Some of them even became members of the American Mafia. That´s strange, given the fact that they were already made in Sicily. Like John Gambino. One of the three ‘Cherry Hill Gambino`s’. He even became a capo in the Gambino Family. Sal Catalano, also made in Sicily, became a capo in the Bonanno Family. He even ran the Family for about three years, but gave up, because he couldn´t speak English very well. He became boss, after Carmine Galante was shot dead. His Sicilian bodyguards didn´t do nothing tp protect him. They were more loyal to Catalano. John Stanfa was also a zip. He became the boss of the Bruno/Scarfo Family. But I´m drifting away here, the zips operating in the USA, is a story by itself.
AFTER THE MEETING.
At the end of 1957 a new meeting took place. This was for the Americans only. Joe Bonanno and Carlo Gambino had too explain a few things to the rest of the American Cosa Nostra. This meeting took place in Apalachin. Before this meeting Carlo Gambino went to Italy and had a sit-down with Luciano. Luciano ordered Bonanno to inform the Mob back home, about their meeting in Palermo. Others, like Vito Genovese wanted also a meeting, but for other reasons.
We all know how this ended!
THE TRUTH HURTS.
Tommaso Buscetta decided he had enough. He, and many others, fled Sicily because he was part of the losing faction during the Second Great Mafia War. When the winning faction went after his family and killed a few cousins and/or brothers, because they couldn’t find him, He became a Goverment witness. During his tales about the Mob, he never said nothing about the summit in Palermo. He did say, that he had dinner with Luciano , Bonanno and other Mobsters, but there was no meeting. While they were having a ball, Bonanno said to him that they should have their own Commission. I find this hard to believe. Joe Bonanno, or even Luciano, did not know about Buscetta. Buscetta in 1957 was a capo, or maybe even less. But he was a rising star, so the La Babera brothers brought him along. Even Joe Bonanno had enough. He quit the Mob. In his book ‘Men of Honor’ he ‘ratted out’ on his former friends. But like Buscetta, he also said that there was no summit in Palermo.
Why did they not tell us about it? Well, I can´t give no answer to that question. Maybe this famous meeting never took place.Most of the men who attended the meeting are dead. They only ones who can tell us, don´t. We can only speculate why not. Maybe a ‘third’ power was present. Some believe that Michael Sidone, a banker, from the famous P2 loge was present. That could be. Anyway, Buscetta never said nothing about this meeting while he was spilling his guts in front of a judge in Palermo. Behind him where about 400 Mafiosi in small cells, standing trail because of him. Many vhere convicted. The truth hurts, but was it the whole thruth?
Article 4: This is another example of the powerful Arm Joe Bonnano Sr. could utilize when his Bonanno/Bonnano Family was dragged into a Court room, this time it was in New York. Mr. Joe Bonnano Sr. never had to leave the confines of the Bar Bon ranch outside of Tucson, his huge influence over the court systems once again prvailed and all charges were dismissed.
879 F.2d 20, 58 USLW 2049, RICO Bus.Disp.Guide 7252
United States Court of Appeals, Second Circuit.
UNITED STATES of America, Plaintiff-Appellant,
The BONANNO ORGANIZED CRIME FAMILY OF LA COSA NOSTRA, Joseph Bonanno, Philip Rastelli, Joseph Massino, Anthony Spero, Louis Attanasio, Alfred Embarrato, Gabriel Infanti, Frank Lino, Nicholas Marangello, Anthony Reila, Michael Sabella, Anthony Graziano, Benjamin Ruggiero, Ignatius Bracco, James Vincent Bracco, William Rodini, Vito Gentile, International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Appliance Home Delivery Union, Executive Board of International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Appliance Home Delivery Union, International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Appliance Home Delivery Union Welfare Fund, International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Appliance Home Delivery Union Pension Fund, International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Appliance Home Delivery Union Annuity Fund, Defendants-Appellees.
No. 903, Docket 88-6289.
Argued March 13, 1989.
Decided June 23, 1989.
SUBSEQUENT HISTORY: Cited in: European Community v. RJR Nabisco, Inc., 150 F.Supp.2d 456 (E.D.N.Y. Jul. 16, 2001) (No. 00CV06617NGGVVP, 00CV02881NGGVVP)
Declined to extend by: City of Chicago Heights, Ill. v. LoBue, 841 F.Supp. 819 (N.D.Ill. Jan. 7, 1994) (No. 92 C 7410)
Distinguished by: Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 103 F.Supp.2d 134 (N.D.N.Y. Jun. 30, 2000) (No. 99CV2194)
RELATED REFERENCES: U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 1987 WL 18172 (E.D.N.Y. Sep 22, 1987) (No. CV-87-2974)
U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625 (E.D.N.Y. Mar. 25, 1988) (No. CV-87-2974)
U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 695 F.Supp. 1426 (E.D.N.Y. Sep. 30, 1988) (No. CV-87-2974)
U.S. v. Rastelli, 1989 WL 5273 (E.D.N.Y. Jan 23, 1989) (No. CV-87-2974)
U.S. v. Rastelli, 1989 WL 50826, 113 Lab.Cas. P 11,622 (E.D.N.Y. May 1, 1989) (NO. 87 CIV. 2974)
U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 1989 WL 50823 (E.D.N.Y. May 8, 1989) (No. CV-87-2974)
U.S. v. Rastelli, 1989 WL 62340 (E.D.N.Y. May 31, 1989) (No. 87 CIV. 2974)
U.S. v. Rastelli, 1989 WL 69887 (E.D.N.Y. Jun. 21, 1989) (No. 87 CIV. 2974)
[*21] COUNSEL: Peter R. Ginsberg, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Thomas A. Carr, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y., of counsel), for plaintiff-appellant.
Michael J. Coyle, New York City (Stanley A. Teitler, New York City, of counsel), for defendant-appellee Rastelli.
JUDGES: MESKILL and NEWMAN, Circuit Judges, and KENNETH CONBOY, District Judge for the Southern District of New York (sitting by designation).
OPINION BY: CONBOY, District Judge:
The United States filed the original complaint in this action on August 25, 1987 against “the Bonanno Organized Crime Family of La Cosa Nostra” (“the Bonanno Family”), Local 814 of the Van Drivers, Packers and Furniture Handlers, Warehousemen’s and Home Delivery Union, and numerous individuals. An amended complaint was filed in October of 1987. The amended complaint contained fourteen separately denominated claims for relief, thirteen of which were predicated on violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1982 and Supp. VI 1987). The remaining claim was in rem against certain properties allegedly used by the defendants in connection with violations of 18 U.S.C. § 1955 (1982 & Supp. V 1987), which essentially prohibits all forms of participation in the conduct of illegal gambling businesses. The government sought extensive injunctive relief pursuant to Section 1964(a), an award of treble damages pursuant to Section 1964(c), and forfeiture of the properties identified in the Section 1955 claim. In response to a number of motions attacking the pleadings, the District Court for the Eastern District of New York (I. Leo Glasser, Judge) ruled, inter alia, that the federal government lacks standing to sue under 18 U.S.C. § 1964(c) and that the Bonanno Family is not a “person” within the meaning of RICO and thus not a proper RICO defendant. United States v. Bonanno Organized Crime Family, 683 F.Supp. 1411 (E.D.N.Y.1988). On the basis of these two rulings, which are the subject of this appeal, the District Court dismissed all claims against the Bonanno Organized Crime Family and all monetary damage claims based on RICO, and directed entry of judgment pursuant to Fed.R.Civ.P. 54(b).
I. Is the United States a “person” entitled to sue under Section 1964(c)?
As always, in executing our over-arching obligation to give effect to congressional intent, Blackfeet Tribe of Indians v. Montana, 729 F.2d 1192 (9th Cir.1984), aff’d, 471 U.S. 759, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985), “consideration must first be given to the language of the statute,” [*22] Netherlands Shipmortgage Corp. v. Madias, 717 F.2d 731, 732 (2d Cir.1983), and if the language is clear and unambiguous it must ordinarily be regarded as conclusive. Sierra Club v. U.S. Army Corps of Engineers, 732 F.2d 253, 258 (2d Cir.1984). But see Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981) (plain-meaning rule does not preclude consideration of persuasive extrinsic evidence if it exists); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 747 (2d Cir.1983) (“Mere incantation of the plain meaning rule … cannot substitute for meaningful analysis.”), cert. denied, 467 U.S. 1251, 104 S.Ct. 3534, 82 L.Ed.2d 839 (1984). The plain-meaning rule, however, is easier stated than applied, since “ ‘whether … the words of a statute are clear is itself not always clear.’ ” 2A Sutherland Statutory Construction § 46.04, at 86 (4th ed. 1984) (quoting Barbee v. United States, 392 F.2d 532 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1849, 20 L.Ed.2d 855 (1968)).
What the government heralds as the plain and obvious meaning of the relevant statutory text is in fact arrived at by a relatively involved, and selective, process of deduction. Section 1964(c) provides as follows:
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 fee.
“Person” is in turn defined to include “any individual or entity capable of holding a legal or beneficial interest in property.” Section 1961(3). Sidestepping the question of whether the rather amorphous term “entity” plainly and ordinarily encompasses the United States, [FN1] the government maintains that it has standing to sue under Section 1964(c) because the United States is capable of holding a legal or beneficial interest in property. Whatever else might be said about this conclusion—that it is arguable or reasonable—it does not follow from the plain language of the statute. If the government’s standing under Section 1964(c) is “plain,” one would be at a loss for adjectives to describe the manner in which Congress ordinarily expresses its intention to render a statutory provision applicable to the United States: by explicit reference to the United States in the operative language of the statute or by explicit inclusion of the United States in the statutory definition of the object or objects affected by the law. See General Accounting Office v. General Accounting Office Personnel Appeals Bd., 698 F.2d 516, 524 (D.C.Cir.1983). To see examples, we need look no further than RICO itself, see Section 1963, nor for that matter beyond the subsections immediately preceding and following 1964(c), see Section 1964(b) (“The Attorney General may institute proceedings under this section.”) and Section 1964(d) (final judgment in criminal proceeding estops defendant from denying essential elements of the crime “in any subsequent civil proceeding brought by the United States”).
FN1. The Fifth Edition of Black’s Law Dictionary defines “entity” as
[a] real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates trusts….
An existence apart, such as a corporation in relation to its stockholders.
The dictionary also sets forth Section 101(14) of the Bankruptcy Act which, unlike RICO, defines the word “entity,” as it is used in Title 11, and expressly lists a “governmental unit” as an example.
The argument against inclusion of the United States is strengthened in this case by the effective breadth of the ruling urged by the government. The government brings to bear an arsenal of statutory-construction principles on the question of whether it has standing to sue for treble damages under Section 1964(c), but the answer turns in large measure on the more general question of whether the United States is a “person” as that term is defined in 1961(3). Under RICO, “a ‘person’ can sue or be sued, and the statute does not distinguish between the definition of a potential [*23] plaintiff and defendant.” Brief for the Appellant at 17. The disadvantage of being a “person” within the meaning of RICO is that it subjects qualifying entities to the powerful and expansive criminal and civil liability provisions of the Act. Whether the government has standing to sue and whether it has waived its sovereign immunity may, in the abstract, be different questions, but in this case the answer to one is apparently the answer to both. See Firestone v. Howerton, 671 F.2d 317, 320 n. 6 (9th Cir.1982) (when same terms are used in different sections of statute, they receive the same meaning); 2A Sutherland Statutory Construction, § 47.07, at 133 (4th ed. 1984) (“Legislative declaration of the meaning that a term shall have … is binding, so long as the prescribed meaning is not so discordant to common usage as to generate confusion.”).
It is elementary that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued …, and the terms of its consent to be sued in any court define the court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-770, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969).
United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Thus, our analysis must be informed by the following question: Do the relevant sources of congressional intent on the meaning of Section 1964(c), separately or collectively, evince an unequivocal expression of congressional intent to expose the government to RICO liability? That the United States is capable of owning property and is, perhaps, an “entity” is no better than ambiguous evidence on this issue since
[s]tatutory provisions which are written in such general language as to make them reasonably susceptible to being construed as applicable both to the government and to private parties are subject to a rule of construction which exempts the government from their operation in the absence of other particular indicia supporting a contrary result in particular instances.
3 Sutherland Statutory Construction, § 62.01, at 111 (4th ed. 1986).
Guided by these principles, the Supreme Court, in United States v. Cooper Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071 (1941), held that the United States could not maintain an action for treble damages under Section 7 of the Sherman Act, the nearly identical prototype for RICO’s civil damage provision:
Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor … and shall recover three fold the damages by him sustained….
Id. at 604, 61 S.Ct. at 743. Disclaiming reliance on a “hard and fast rule of exclusion,” id. at 604-05, 61 S.Ct. at 743, [FN2] the Court nonetheless concluded that the phrase “any person” does not authorize actions by the government because “ ‘the ordinary dignities of speech would have led’ to [the government’s] mention by name” had Congress so intended, id. at 606, 61 S.Ct. at 744 (quoting Davis v. Pringle, 268 U.S. 315, 318, 45 S.Ct. 549, 550, 69 L.Ed. 974 (1925)). And, the Court further observed, unless Congress used the term “person” in two different senses in the same sentence, Section 7, which authorized a “person” to sue any “person” who violated the Act, would have exposed the United States to liability for treble damages. Id. The Court’s reasoning in Cooper applies with equal force here. It is therefore fair to say that the primary source of congressional intent—the language of the section [*24] under consideration—does not support the government’s position.
FN2. “The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.” id. at 605, 61 S.Ct. at 743-44.
In ascertaining the proper construction of a specific statutory provision, it is also appropriate and helpful to view the disputed language in context; that is, to interpret the specific provision in a way that renders it consistent with the tenor and structure of the whole act or statutory scheme of which it is a part. See 2A Sutherland Statutory Construction, § 46.05 (4th ed. 1984). The Court in Cooper observed that the first three sections of the Sherman Act imposed criminal liability for antitrust violations and that Section 4, 15 U.S.C. § 4, explicitly granted the United States authority to seek injunctions against such violations. Only Section 7 provided an action to “persons” injured in their business or proprietary capacity. This dual structure, the Court found, evinced clear congressional intent to authorize “two classes of actions,—those made available only to the Government, which are first provided in detail, and, in addition, a right of action for treble damages granted to redress private injury.” id. at 608, 61 S.Ct. at 745. The same can be said about RICO. In addition to authorizing criminal prosecutions by the government, with broad ancillary powers, see Section 1963(b), the treble damage provision at issue here is, as already noted, nestled between two subsections that explicitly refer to the United States and delineate its powers on the civil side of RICO.
Despite the manifest and undeniable significance of the Clayton Act as a model for the structure and language of RICO, Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 151, 107 S.Ct. 2759, 2764, 97 L.Ed.2d 121 (1987); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 489, 105 S.Ct. 3275, 3282, 87 L.Ed.2d 346 (1985); see also 116 Cong.Rec. 35295 (1970) ( “Title IX represents, in large measure, an adaptation of the machinery used in the antitrust field to redress violations of the Sherman Act and other antitrust legislation) (Statement of Rep. Poff), the government suggests that antitrust cases like Cooper [FN3] are of little value in construing Section 1964(c) because Congress clearly intended “not to burden RICO with” precedent under those laws. This position is inaccurate and in some respects irrelevant.
FN3. In 1914, Section 7 of the Sherman Act was superseded, without significant change, by Section 4 of the Clayton Act. Section 7 was eventually repealed in 1955 since it was essentially superfluous. See Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 311 & n. 8, 98 S.Ct. 584, 587 & n. 8, 54 L.Ed.2d 563 (1978); Hawaii v. Standard Oil Co., 405 U.S. 251, 264 n. 15, 92 S.Ct. 885, 892 n. 15, 31 L.Ed.2d 184 (1972).
First, even if the structural and textual similarities between RICO and the antitrust laws were purely coincidental, it would not mean that the Cooper decision, which applied general rules of statutory construction and common sense to a parallel issue, is not a persuasive precedent. As in Cooper, the language and structure of the statute at issue, and the consequences of the interpretation urged by the government, all point to a reading of a civil liability provision that excludes actions by the United States.
Second, what the government presents as a sweeping congressional admonition against reliance on antitrust precedents is a much more limited expression of policy against saddling RICO with restrictive rulings born of the theoretical underpinnings of the antitrust laws; specifically, limitations on standing and strict causation requirements tied to notions of economic competition. See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (because antitrust laws were enacted to protect competition and not competitors, Clayton Act plaintiff must prove injury that reflects anti-competitive effect either of violation or of anti-competitive acts made possible thereby). Thus could the Supreme Court in Sedima reject, as a prerequisite to maintaining an action, a “racketeering injury”—until then read into RICO by some courts analogizing to the “competitive injury” requirement in antitrust cases—because it was a precedent “ ‘appropriate in a purely antitrust context,’ ” 473 U.S. at 498, 105 S.Ct. at 3286 (quoting 115 Cong.Rec. 6995 (1969)), and then decide, less than two [*25] years later in Agency Holding Corp., that the four-year statute of limitations applicable to the Clayton Act applied to RICO in part because of “the similarities in purpose and structure between RICO and the Clayton Act [and] the clear legislative intent to pattern RICO’s civil enforcement provision on the Clayton Act,” 483 U.S. at 152, 107 S.Ct. at 2765. These cases demonstrate that Congress’ desire to prevent the grafting onto RICO of substantive concepts intrinsic to antitrust in no way diminishes the inferences to be drawn from the intentional structural and textual similarities between RICO and the Clayton Act.
To the contrary, it is generally presumed that Congress is (a) knowledgeable about existing laws pertinent to later-enacted legislation, Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 108 S.Ct. 1704, 1711-12, 100 L.Ed.2d 158 (1988), (b) aware of judicial interpretations given to sections of an old law incorporated into a new one, St. Regis Mohawk Tribe v. Brock, 769 F.2d 37 (2d Cir.1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986), and (c) familiar with previous interpretations of specific statutory language, Blitz v. Donovan, 740 F.2d 1241, 1245 (D.C.Cir.1984). If the standing provisions of the antitrust laws have not precisely been incorporated into RICO, they are, at a minimum, pertinent to the Act and contain, in certain respects, identical language.
In advancing several specific arguments to support its claim, the government fails to acknowledge the existence, let alone the significance, of germane antitrust precedents. For example, the proposition is advanced that the United States should be on at least an equal footing with the states and their subdivisions, which have been held to be “persons” under RICO. See, e.g., Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160 (5th Cir.1984); Pennsylvania v. Cianfrani, 600 F.Supp. 1364 (E.D.Pa.1985). But the government fails to discuss the importance of Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942), where the Court held that a state is a “person” for anti-trust purposes largely because any other ruling would completely deprive states of redress against violators, unlike the United States which had several exclusive remedies and powers provided for it under the Sherman Act. id. at 161-62, 62 S.Ct. at 973-74. The government also maintains that the use of the word “includes” before the examples in the definition of “person” summons us to read the definition as embracing the United States. The Sherman Act, however, contained a similar, ostensibly open-ended, definition of “person”:
“the word ‘person’ or ‘persons’ wherever used in this act … shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.”
Cooper, 312 U.S. at 607, 61 S.Ct. at 745. From the very fact of “this sweeping inclusion of various entities,” id., the Court reasoned “that if the United States was intended to be included Congress would have so provided expressly,” id. While we should be reluctant to conclude that Congress intended nothing by departing from the definition of “person” in the Sherman Act, it is simply impossible to tell exactly what consequences were expected by the changes made in Section 1961(3). Given the canons of statutory construction we have already discussed, we will certainly not presume that Congress expressed its intention to avoid the interpretation given the Sherman Act by so nebulous and oblique a change in phraseology.
Fourteen years after the Supreme Court in Cooper declined to read Section 7 of the Sherman Act as granting the United States a right to seek treble damages, Congress amended the Clayton Act by adding a separate provision explicitly authorizing the United States to seek recovery of actual damages for violations of the antitrust laws:
Whenever the United States is hereafter injured in its business or property by reason of anything forbidden in the antitrust laws it may sue therefor in the United States district court for the district in which the defendant resides or is found or has an agent, without respect to [*26] the amount in controversy, and shall recover actual damages by it sustained and the cost of suit.
Section 4A, 15 U.S.C. § 15a. Whether viewed as a departure from the structure of the antitrust laws as they existed after 1955, or as a conformation to their framework as they existed before, the omission of an express provision for damage actions by the government in RICO must be viewed as informed and intentional. To say, as does the government, that Congress might simply have “opted in RICO not to distinguish between sovereign and non- sovereign litigants” is illogical and completely contrary to the above-mentioned judicial presumptions. It is also inimical to direct and explicit evidence in the legislative record of Congress’ understanding of Section 1964(c).
An earlier version of RICO passed by the Senate, S. 1861, 91st Cong., 1st Sess., 115 Cong.Rec. 9951 (1969), did not include a provision for private damage actions. At the suggestion of Representative Steiger and the American Bar Association, subsection (c) of 1964 was added to the Senate bill so “that private persons injured by reason of a violation of the title may recover treble damages in federal courts.” 116 Cong.Rec. 35,295 (1970) (statement of Rep. Poff) (emphasis added). [FN4] The House version of the bill, which included other amendments in addition to the treble damage provision, was passed without comment on the expanded scope of Section 1964. Representatives Steiger and Poffs’ understanding of the new provision is echoed in the House Judiciary Committee Report’s preliminary description of the main features of the Organized Crime Control Act of 1970: “The title, as amended, also authorizes civil treble damage suits on the part of private parties who are injured.” H.R.Rep. No. 1549, 91st Cong., 2d Sess. 57, reprinted in 1970 U.S.Code Cong. & Admin.News 4007, 4010 (emphasis added) (hereinafter “House Report”).
FN4. Representative Steiger envisioned “a private civil damage remedy … similar to the private damage remedy found in the anti-trust laws.” Organized Crime Control: Hearings on S. 30 and Related Proposals Before Subcomm. No. 5 of the House Comm. on the Judiciary, 91st Cong., 2d Sess. 520 (1970) (emphasis added).
The apparent lack of any provision for damage actions by the government prompted Representative Steiger to propose an amendment to RICO similar to Section 4A of the Clayton Act. See 116 Cong.Rec. 27,739; see also id. at 35,227-28 (1970) (“title IX fails to provide … compensatory damages to the United States when it is injured in its business or property …”) (statement of Rep. Steiger). The amendment was eventually withdrawn not because it was thought to be superfluous but because it had not been considered by the Judiciary Committee. 116 Cong.Rec. 35,346-47 (1970).
Apart from comments in the Congressional Record expressing concern that RICO not be hampered by principles “appropriate in a purely antitrust context,” 115 Cong.Rec. 6995 (1969), the only portion of the legislative history offered by the government on the intended scope of the treble damages provision is a sentence quoted from the Senate Judiciary Committee Report, supposedly to the effect that the enumerated remedies in Section 1964 are not exclusive. The sentence, however, is taken out of context in a way that materially distorts its meaning. The Senate Report reads in relevant part as follows:
Subsection (a) contains broad remedial provisions for reform of corrupted organizations. Although certain remedies are set out, the list is not exhaustive….
S.Rep. No. 617, 91st Cong., 1st Sess. 160 (1969) (emphasis added); accord House Report at 4034. The lack of a similar invitation to expand the remedies beyond those expressly enumerated in subsection (c) gives rise to the inference that Congress was not as sanguine about free-wheeling judicial expansion of the potent treble-damage remedy under the Act. It is evident, therefore, that the legislative history is, without significant exception, stronger and more direct than the text of the Act in its support of an interpretation of “person” that excludes the United States.
[*27] We are left then to consider the congressional mandate to read the provisions of RICO broadly to advance its remedial purposes, P.L. 91-452, § 904(a), 84 Stat. 947, which, the government argues, compels us to resolve any ambiguity in the statutory text and legislative history on this question in favor of inclusion. The short answer to this argument is that “a legislative mandate to apply a liberal interpretation to an act will not justify the judicial creation of right or liabilities under the guise of ‘construction.’ ” 2A Sutherland Statutory Construction, § 58.05, at 722 (4th ed. 1984). To give RICO the construction requested by the government in the face of the language, structure, and legislative history of the Act, the inferences and presumptions to be drawn from Congress’ intentional use of the Clayton Act as a model, and the strong judicial presumption against waivers of sovereign immunity, would not be liberal construction but liberal re-writing of the statute. Nor could the incremental increase in the government’s already broad and potent powers under the Act, when weighed against the havoc that would be wreaked by this Court even raising the prospect of governmental exposure to RICO liability, be fairly deemed to be an effectuation of the Act’s remedial purposes.
We accordingly conclude that Congress did not intend to authorize treble damage actions by the United States pursuant to 1964(c).
II. Is the Bonanno Family a “person” Subject to Suit Under RICO?
Although we can envision serious practical and perhaps constitutional difficulties arising out of lawsuits against crime syndicates, we can assume, without deciding, that an organization with the alleged attributes of the Bonanno Family is subject to suit under Fed.R.Civ.P. 17(b)(1). Cf. United States v. The Rainbow Family, 695 F.Supp. 294 (E.D.Tex.1988) (the Rainbow Family, although informal and loosely-knit, has sufficiently tangible structure to render it subject to suit under Rule 17(b)). Each of the in personam claims asserted against the Bonanno Family in the complaint are, however, predicated on 18 U.S.C. § 1964. Consequently, in addition to being at least an association-in-fact for purposes of Rule 17(b)(1), the Bonanno Family must, in order to be subject to suit under RICO, be a “person”— that is, an “entity capable of holding a legal or beneficial interest in property.”
We note preliminarily that the complaint’s catalog of properties allegedly “owned” by the Bonanno Family was not an impediment to the district court’s inquiry into the sufficiency of the pleadings. Using circular logic, the government argues that the Bonanno Family must be capable of holding a legal or beneficial interest in property because the complaint alleges, and the district court was obligated to assume, that it “actually does hold such an interest.” Brief for the Appellant at 39; see Cplt. ¶¶ 68-69, 72, 76, 79, 84, 88, 92, 96, 99, 103, 107, 110, 115. We agree that the district court was constrained to accept the complaint’s allegations as true but only to the extent that they were factual. “[L]egal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness.” 2A J. Moore, Moore’s Federal Practice, ¶ 12.07[2.-5] at 63-64 (2d ed. 1987). Accepting as true the government’s characterization of the Bonanno Family’s purpose, structure, and activities, it remained for the court to decide whether such an entity had the capacity to own property.
To resolve this question, we will first consider the government’s argument that the Bonanno Family is not simply a loose association-in-fact but is akin to a partnership or at least a joint venture, despite the absence of a specific allegation to that effect in the complaint. Measuring the allegations of the complaint against the essential characteristics of these two types of business organizations, we find the government’s analogy to be dubious at best.
In New York, as in most other states, there are several significant indicia of the existence of a partnership relationship among various owners of interests in a business venture. These include: (1) the pro-rata sharing of profits and losses [*28] of the enterprise, (2) the pro-rata contribution to the capital of the enterprise, (3) the joint ownership and interest in the enterprise’s assets by all investors, (4) the intention of the parties that they be partners, and (5) the partners all having some voice in the management of the enterprise. 43 N.Y.Jur. Partnership §§ 30-41; 59 Am.Jur. Partnership §§ 39-47.
Tenney v. Insurance Co. of North America, 409 F.Supp. 746, 748-49 (S.D.N.Y.1975). A close reading of the complaint does not reveal two or more persons who function as partners. None of the allegations state or even intimate that any two or more of the named family members have anything resembling a rough equality of power in the management of the organization or joint-ownership of its assets, let alone an intention to be partners in the conventional sense. On the contrary, the relationship among the family members resembles that of the hierarchy in a privately owned company, and a rather strict one at that. Thus
[t]he Bonanno family operates and has operated at all times relevant to the instant action through groups known as “crews.” Each crew has as its leaders a person known as a “Capo,” who is the captain or boss of a crew…. [a] “Capo” of a crew is supervised by, reports to, and, where necessary, is supported by the head of the Bonanno Family, who is known as the “Boss.” The Boss has a second-in-command, known as the “Underboss.” The Bonanno Family also has a counselor or advisor, known as a “Consigliere,” who advises about intra-Family disputes….
[T]he Bonanno Family rules dictate that a crew member cannot participate in illegal activities without the prior approval of the crew member’s Capo. Likewise, a Capo can only undertake an illegal activity after the Boss or the Underboss has approved the activity.
Cplt. ¶ 4. There is in addition no indication that family members agree to share losses. While such an organization may commonly be thought of as a “partnership in crime,” it does not appear to be a functioning partnership. The strict hierarchical structure, and the lack of any apparent joint control or commingling of property, also distinguish the Bonanno Family from a joint-venture. See McGhan v. Ebersol, 608 F.Supp. 277 (S.D.N.Y.1985).
In any event, even if the complaint could be amended to ascribe to the Bonanno Family the requisite features of a partnership or a joint venture, the organization described in the complaint lacks the capacity to hold a legal or beneficial interest in property for a more fundamental and obvious reason: In its purpose, structure, and operations it is wholly and innately unlawful.
Under both federal and state law, illegal agreements, as well as agreements contrary to public policy, have long been held to be unenforceable and void, see Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982); Walters v. Fullwood, 675 F.Supp. 155 (S.D.N.Y.1987); United Calendar Mfg. Corp. v. Huang, 463 N.Y.S.2d 497, 94 A.D.2d 176 (2d Dep’t 1983); Silvera v. Safra, 361 N.Y.S.2d 250, 79 Misc.2d 919 (Sup.Ct.N.Y.Cty.1974), and even where a contract is not itself unlawful, the bargain may still be illegal under New York law if it is closely connected with an unlawful act. Contemporary Mission, Inc. v. Bonded Mailings, Inc., 671 F.2d 81 (2d Cir.1982). The same principle demands that rights in or arising out of illegal partnerships not be recognized:
An alleged partnership founded upon an illegal basis or one contrary to public policy cannot be used to establish any rights of the parties involved as parties. Moreover, if the purpose or subject matter of a partnership contract is illegal or against public policy, the contract may be held to be void.
15 N.Y.Jur.2d Business Relationships § 1296, at 581-82 (1981); see Woodsworth v. Dennett, 43 N.Y. 273 (1871); Courtney v. Riordan, 192 Misc. 53, 79 N.Y.S.2d 658 (1948). A particularly apt example, for our purposes, is Rutkin v. Reinfeld, 229 F.2d 248 (2d Cir.), cert. denied, [*29] 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). There, the plaintiff filed an action against his former partner and various third parties, alleging that they defrauded him out of his interests in properties related to the distillation and sale of liquor. The evidence at trial revealed that Rutkin, Reinfeld, and others were in fact “partners” in a bootlegging operation during prohibition, and that the properties involved in the lawsuit were purchased with an eye towards the further illegal importation of liquor. Finding that “[a] member of … an illegal partnership is not entitled to enforcement of any right depending on the partnership agreement,” id. at 256, the court reversed the judgment against the defendants, id. at 257. Accepting as true the allegations in the complaint, the Bonanno Family differs from the Rutkin/Reinfeld partnership only in that it is larger, stronger, and more malevolent.
If the courts will not recognize or enforce rights arising out of illegal partnerships, then, a fortiori, the property rights of less formal but no less inherently illegal arrangements like organized crime families will receive no greater recognition. Moreover, even without the taint of illegality, the Bonanno Family would not have the capacity to hold title to property if, as we believe, it is simply an unincorporated association:
Since unincorporated associations, clubs, societies, unless recognized by statute, have no legal existence, they cannot, in the absence of statutory authorization, take or hold property in the association name, either by way of gift or purchase. Thus, an unincorporated voluntary association is incapable of taking or holding either real or personal property.
6 N.Y.Jur.2d Associations and Clubs § 6, at 329 (1980). See Reinisch v. New York Stock Exchange, 52 F.R.D. 561 (S.D.N.Y.1971).
The absence of a cognizable legal existence separate from its members would also appear to render useless a judgment against an association like the Bonanno Family since “proof of either knowledge of or ratification of an association’s wrongful acts is crucial to extension of additional personal liability to its members.” Expert Elec., Inc. v. Levine, 554 F.2d 1227 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Absent public acknowledgment of family membership or the existence of property openly held in the family’s name, proceeding against alleged family members to enforce or satisfy a prior judgment or to seize family “property” ostensibly owned by individual family members would not, it appears, be any more effective than proceeding in the first instance directly against such individuals. The natural and seemingly effective place for locating crime families in RICO pleadings is in the “enterprise” element, where it is already commonly used to proceed against illicit organizations’ members, proceeds, and “property” in single actions. See, e.g., United States v. Persico, 832 F.2d 705 (2d Cir.1987) (fourteen defendants indicted for managing and participating in the “Colombo Family racketeering enterprise”), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988); United States v. Langella, 804 F.2d 185 (2d Cir.1986) (indictment against nine individuals alleged to be the members of an enterprise known as “the Commission of La Cosa Nostra” which resolved disputes among and carried out joint activities involving the principal Mafia families in New York City); United States v. International Brotherhood of Teamsters, 708 F.Supp. 1388, 1392 (S.D.N.Y.1989) (civil complaint against International Brotherhood of Teamsters, “the Commission of La Cosa Nostra,” and 26 La Cosa Nostra members alleging conspiracy to participate in a “massive enterprise,” and seeking “sweeping” equitable relief to reform the union and prevent future Mafia infiltration).
In its attempt to qualify the Bonanno Family as a RICO “person,” the government, as it did on the question of the United State’s standing under Section 1964(c), also resorts to the expansive statutory definition of “person” to advance an interpretation not supported by the language of the Act. Whatever categories of non-enumerated persons are eventually found to be included in 1961(3), however, an organized [*30] crime family is not one of them. First, as a general matter, use of the qualifier “includes” cannot mean that we are free to ignore the evidence of congressional intent, including the enumerated examples, and simply read the definition of “person” as all-inclusive. More significantly, the ruling sought by the government would not complement the enumerated examples but would render one of them superfluous, if not absurd. Only those entities capable of holding an interest in property qualify as “persons” under Section 1961(3). To say that an essentially illegitimate entity is a person would read the property-right restriction out of the statute.
Finally, in light of the absence of any clear evidence in the legislative history that Congress intended a different result, we again decline the invitation to use the “liberal construction” clause to undermine the choices Congress made in fashioning RICO as it did.
Accordingly, the judgment appealed from is in all respects affirmed.
Article 5. Actual poster used by the New York police department when Joe Bonnano Sr, was supposedly kidnapped in front of his Attorney William Maloney while walking into a fedearl court house. This was a staged event for Joe Sr. to get all his plans in order before facing these charges and beginning the Banana Wars which seperated him completely by 1969 in the national media with his announced fatigue and supposed health problems which he used as his reasons for full retirement from the Cosa Nostra Commission. This ordeal is covered in more detail in my memiors on page 3 of this website.
|HONOR THY GODFATHER|
A Transcript of the actual court document.
|Brian Downing Quig was a life long residence of the state of Arizona and made it his life's goal to expose the tyranny that literally took his home state over in the mid 40's with Joe Bonanno Sr. moving to the desert city of Tucson. Mr. Quig did not get to finish his quest to expose the criminal empire that Joe Bonanno built from 1942's move from New York due to his untimely demise (http://www.apfn.net/dcia/bmain.htm). The author of the attached article and I do not believe was an accident, as reported by the Arizona authority's. The Honorable Brian Downing Quig was murdered to shut him up for good, although it did not shut down his web site with all his documented evidence on the cesspool of Politics that was controlled by the top Mafia Godfather on the planet, Joe Bonanno, SR. That is exactly how I see it, and that is why I have chose to make the Arm of The Aged Don website. This page is in Honor of Mr. Brian Downing Quig! I am posting several of Quig’s articles below that help explain, or prove my point, on what we both saw as the reality of Joe Bonanno's pre-planned move of his power base from New York, and his total separation from the Cosa Nostra Commission.|
|IN HONOR OF BRIAN DOWNING QUIG|
& OTHER TRUTH SEEKERS