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United States v. Davis

argued: March 28, 1978.

UNITED STATES OF AMERICA
v.
DAVIS, RICHARD A., APPELLANT (D.C. CRIM. NO. 77-71)



ON APPEAL FROM the UNITED STATES DISTRICT COURT for the MIDDLE DISTRICT OF PENNSYLVANIA.

Aldisert, Gibbons, Higginbotham, Circuit Judges. Aldisert, Circuit Judge, concurring.

Author: Gibbons

GIBBONS, Circuit Judge.

Richard A. Davis, former warden of the Dauphin County Prison in Harrisburg, Pa., appeals from the judgment of sentence imposed following his conviction in a jury trial for a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).*fn1 The indictment on which he was tried charged that in numerous instances he solicited or accepted bribes "as consideration for a decision, opinion, recommendation, vote and exercise of discretion as the Warden," contrary to 18 Pa.C.S. § 4701(a).*fn2 Prior to trial, Davis moved for the dismissal of the indictment both as time-barred and as failing to aver sufficient facts to give him notice of the charges against him. This motion was denied, the case was tried, and a verdict of guilty was returned. On appeal, Davis makes several contentions.

I. THE TIME BAR

RICO prohibits a person from engaging in a "pattern racketeering activity." 18 U.S.C. § 1962(c). "Racketeering activity" is defined, for purposes of this case, as bribery or extortion "which is chargeable under State law and punishable for more than one year." 18 U.S.C. § 1961(1)(A). Davis contends that prosecution for all the acts of bribery which the government charged and proved was barred by the relevant Pennsylvania statute of limitations. Because he contends that in RICO Congress intended to borrow state statutes of limitations for the predicate state offenses, Davis urges us to read the words "chargeable under State law" to mean "presently chargeable under State law." In United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir. 1977), we held that the governing statute of limitations is found, not in state law, but in 18 U.S.C. § 3282.

Davis argues that Forsythe was incorrectly decided, but that in any event it did not explicitly reject a refinement of his argument which we should now accept. That refinement is that the word "chargeable" does more than refer to state statutes of limitations; it defines the federal offense. An offense, in other words, that is not "chargeable under State law" is not indictable under RICO.

It is true that Forsythe did not in so many words pass on this more refined argument, but we think it rejected it implicitly. The holding in Forsythe was that Congress intended to permit federal indictment within the time specified in § 3282 for offenses which, when committed, were "chargeable under State law and punishable for more than one year." The last-quoted words were meant to limit RICO to serious offenses, offenses which in many but not all jurisdictions would be called felonies.

We now make explicit what was implicit in Forsythe : the words "chargeable under State law" in § 1961(1)(A) mean "chargeable under State law at the time the offense was committed." Davis, therefore, has no ground for objecting to the timeliness of the indictment. We note, furthermore, that in this case three of the five acts of bribery which the government proved took place within the applicable state statute of limitations. Three acts of bribery make a pattern of racketeering activity. The relevant dates show that the pattern continued until well within even the state limitation. 18 Pa.C.S. § 108. For this additional reason, the indictment against Davis was timely returned.

II. VAGUENESS

Davis's next argument is that the indictment did not give him fair warning of the offense with which he was charged. He acknowledges that it listed bribes in specific amounts from named individuals at designated times and places. But he claims that it failed to inform him of what precisely he was alleged to have done in return for each bribe. The indictment, which adopted almost verbatim the wording of 18 Pa.C.S. § 4701(a)(1), charged that each bribe was received "as consideration for a decision, opinion, recommendation, vote and exercise of discretion."

The short answer to Davis's argument is that the gravamen of the offense defined in § 4701 is the solicitation or acceptance of a bribe, not the delivery of its quid pro quo. In an analogous case we have held:

The essence of the crime here charged is the receiving of the money, not the quid pro quo received or promised for that money, and where the statutes use the disjunctive to describe the alternate means of committing the same statutory offense and only one crime is charged, the means of commission are permissible.

United States v. Laverick, 348 F.2d 708, 714 (3d Cir. 1965) (citation omitted).

The government's position on appeal is that, because Davis did not object to the charge quoted in the margin,*fn3 he cannot now contend that the indictment should have specified the quid pro quo. We note that Davis did challenge the sufficiency of the indictment in a pretrial motion. For that reason, we do not rest our affirmance on Fed. R. Crim. P. 30. We ...


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