with the same enterprise are bound together in a single conspiracy; provided that one racketeering act has been committed since 1970 and another no more than ten years before, RICO can be used to delve into the history of an otherwise legitimate entity to find patterns of racketeering from acts of wrongdoing committed decades ago.
The scope of the conspiracy charged in the Indictment is potentially enormous. The government contends that at the time of the "Lerner transaction" Furlong and Lerner were members of a conspiracy to conduct the affairs of the Sheriff's Office through a pattern of racketeering activity.
If the government's theory of RICO were correct, however, the actual conspiracy would in fact be much larger. If Furlong and Lerner were co-conspirators because they participated in the "Lerner transaction," the other 19 members of the Identification Bureau who agreed to contribute $ 200 to Lerner would necessarily be members of the same conspiracy.
Moreover, if the government were correct that the "Lerner transaction" and the other transactions charged in the Indictment were all part of a single conspiracy, every employee who ever contributed $ 100 during the past ten years would also be a conspirator. In other words, once the Sheriff's Office as an entity is viewed as a racketeering enterprise, everyone in it who ever made or collected an illegal payment would be bound together as racketeers.
In this case the government charges that the conspiracy began merely ten years ago; under its theory, however, it could charge Cryan, Leonardis and Neri with transgressions committed much earlier. The fact that RICO may be violated by the systematic extraction of money from employees during a finite period does not convert the Sheriff's Office as an entity into a criminal organization, such that any extortion, bribe or other racketeering activity committed by any employee becomes thereby a violation of RICO chargeable against everyone in the office. The government simply may not convict these defendants on the basis of allegations of a corrupt system of extracting money from county employees, practiced from generation to generation, administration to administration, and from party to party, by scores of persons most of whom have long passed from public office, if not from life itself.
Although it is unnecessary for the Court to define the precise contours of RICO, it is clear that to convict these defendants the government must show that they either committed or authorized the acts charged in the Indictment. The Court finds that the government has failed to persuade it that the "Lerner transaction" is admissible against anyone but Lerner and also that no reasonable juror could conclude, beyond a reasonable doubt, that the "Lerner transaction" is part of the conspiracy charged against all four defendants in the remainder of Count One. See Kotteakos v. United States, supra, 328 U.S. at 773-74, 66 S. Ct. at 1252; United States v. Bertolotti, 529 F.2d 149, 155 (2nd Cir. 1975). Thus, Counts One and Two of the Indictment, which charge the "Lerner transaction" against all four defendants, are defective.
III. AMENDMENT OF THE INDICTMENT
Having determined that the "Lerner transaction" was improperly charged in Counts One and Two, the Court must now determine whether these counts may be amended by striking allegations of the "Lerner transaction" or whether the counts must be dismissed.
The power of a court to "amend" an indictment is limited by the Fifth Amendment guarantee that an individual be tried only on a charge returned by a grand jury. Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887). A court may not substitute its views or the views of the prosecution for those of the grand jury. See United States v. De Cavalcante, 440 F.2d 1264, 1271-72 (3rd Cir. 1971). If an indictment is defective because it charges two or more distinct offenses in a single count for example, two bank robberies the court may require the government to elect the offense on which it will proceed.
In such cases there is no confusion as to the intentions of the grand jury, and striking one of the offenses does not alter the fundamental character of the indictment. See United States v. McCrane, 527 F.2d 906, 912-13 (3rd Cir. 1975), cert. denied, 426 U.S. 906, 96 S. Ct. 2227, 48 L. Ed. 2d 831 (1976).
A more difficult situation arises when, as here, multiple conspiracies are charged in a single count. The distinction between separate conspiracies is frequently subtle. When two conspiracies between different groups of people have been welded improperly into one, the intentions of the grand jury are seldom susceptible to analysis, making it improper for the Court even to attempt any amendment.
Counts One and Two of this Indictment intertwine separate transactions between unrelated persons and fuse them into a single criminal offense. Most of the acts alleged in both Counts relate to a scheme to extort payments on a regular basis from employees in all divisions of the Sheriff's Office. The "Lerner transaction," although not part of this scheme, is integrated into the other charges and is in fact the largest single monetary transaction charged in the Indictment. That particular act of bribery appears even more significant in view of the theory which the government has espoused both at trial and in the course of these motions: the government has consistently viewed the "Lerner transaction" as the cornerstone of the conspiracy which Cryan, Leonardis and Neri later joined. The defects in that theory make it impossible for the Court to determine whether the grand jury would have returned these particular charges had it considered the "Lerner transaction" only against Lerner. Thus, striking allegations of the "Lerner transaction" would constitute an impermissible amendment to the Indictment. See United States v. Goldstein, 502 F.2d 526, 529 (3rd Cir. 1974); United States v. De Cavalcante, 440 F.2d 1264, 1272 (3rd Cir. 1971).
Accordingly, Counts One and Two of the Indictment will be dismissed.