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UNITED STATES v. THOMAS

May 3, 1990

UNITED STATES OF AMERICA
v.
LAFAYETTE "FATE" THOMAS, et al.



The opinion of the court was delivered by: HIGGINS

 THOMAS A. HIGGINS, UNITED STATES DISTRICT JUDGE

 Before the Court are four motions to sever or strike parts of the indictment in this action. On February 28, 1990, defendant Lafayette "Fate" Thomas filed a motion to sever Count 35, which relates to the Hobbs Act, pursuant to Rule 14, Fed. R. Crim. P. (Docket Entry No. 104). On April 9, 1990, defendant Thomas filed a motion to strike racketeering acts four and 14 of Counts One and Two relating to RICO, pursuant to Rule 12(b)(2), Fed. R. Crim. P. (Docket Entry No. 173). On April 11, 1990, defendant Thomas filed a motion to sever Counts 14 and 35, pursuant to Rules 8 and 14, Fed. R. Crim. P. (Docket Entry No. 177). On April 16, 1990, defendant Raymond Gilley filed an identical motion to strike racketeering acts four and 14 (Docket Entry Number 191).

 The Court heard oral argument on these motions at a hearing on April 24, 1990.

 I.

 Regarding the motions to strike racketeering act 14 *fn1" , the Court has considered the motions of defendants Thomas and Gilley, defendant Thomas' memorandum in support (Docket Entry No. 174) and the government's response to the motions (Docket Entry No. 216). Defendant Gilley adopted defendant Thomas' memorandum in support of his motion. The Court has also considered the government's proffer *fn2" made at the hearing of connections to the Sheriff's Department. *fn3"

 Defendants Thomas and Gilley contend that there is no relationship or nexus between predicate act 14 and the other alleged predicate acts or the enterprise (the Sheriff's Department). The government argues that the predicate act is sufficiently connected to the enterprise to constitute a pattern of racketeering.

 The Circuit Courts have consistently not required that all racketeering acts be related to each other, as long as the predicate acts are related to the enterprise. U.S. v. Kabbaby, 672 F.2d 857, 860 (11th Cir. 1982); U.S. v. Welch, 656 F.2d 1039, 1053 (5th Cir. 1981), cert. denied, 456 U.S. 915, 102 S. Ct. 1767, 72 L. Ed. 2d 173, 102 S. Ct. 1768 (1982); U.S. v. Bright, 630 F.2d 804, 812-813 (5th Cir. 1980); U.S. v. Weisman, 624 F.2d 1118, 1129 (2nd Cir.), cert. denied, 449 U.S. 871, 101 S. Ct. 209, 66 L. Ed. 2d 91 (1980). The government asserts that defendant Thomas' position as sheriff for 18 years enabled him to conspire to extort money from William Freeman. The enterprise was affected because defendant Thomas was enabled to commit racketeering acts solely because of his position in the enterprise.

 The proffer, which shows telephone calls to the sheriff at his office and the use of Sheriff Department facilities and personnel all related to the alleged criminal acts, is a sufficient showing at this time that the Sheriff's Department was regularly made available to and put in the service of the alleged illegal activity.

 The Court has carefully reviewed the teachings of the U.S. Supreme Court in H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), on the question of whether the predicate acts establish a "pattern of racketeering activity." Throughout the opinion, Justice Brennan stated that Congress intended a flexible approach to proving such a pattern. The Court stated that:

 
RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.

 Id. at , 109 S. Ct. at 2900, 106 L. Ed. 2d at 208 (emphasis in original).

 The Court found guidance in a provision of the Organized Crime Control Act of 1970 to define the ...


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