STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
PHILIP MORRIS INCORPORATED,
No. 99-2496 (GK)
Next scheduled court appearance
STATES' MOTION TO MODIFY THE MEMORANDUM OPINION OF THE COURT GRANTING B.A.T
INDUSTRIES P.L.C.'S MOTION TO DISMISS THE COMPLAINT FOR LACK OF PERSONAL JURISDICTION
INCORPORATED STATEMENT OF POINTS AND AUTHORITIES
Pursuant to Rule 60 of the Federal Rules of Civil
Procedure, (1) Plaintiff United States respectfully
moves the Court to modify the Memorandum Opinion accompanying its September
28, 2000 Order granting B.A.T Industries P.L.C.'s Motion To Dismiss the Complaint
for Lack of Personal Jurisdiction. In its opinion, the Court adopted a test
for proving a conspiracy under Section 1962(d) of the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, that is inconsistent
with the decision of the Supreme Court in Salinas
v. United States, 522 U.S. 52 (1997). This is an issue that was not previously
briefed by the United States. (2) By this Motion,
the United States asks the Court to replace certain language from its opinion
with language that is consistent with the standards of RICO conspiracy law adopted
in Salinas. Upon considering
this Motion, the Court may also wish to reconsider its dismissal of BAT Ind.
STATEMENT OF POINTS AND
The Court's opinion stated that to be liable for
RICO conspiracy, a defendant must personally commit two acts of racketeering
that constitute a "pattern of racketeering activity" as defined at 18 U.S.C.
§ 1961(5). Slip op. at 9, 14, 16, 18 & 19. In Salinas
v. United States, 522 U.S. 52 (1997), however, the Supreme Court
applied long standing conspiracy principles (3) in holding that the United States is not required to prove that a defendant committed any racketeering act in order to establish a RICO conspiracy offense under § 1962(d). (4)
the defendant argued that he could not be liable for a RICO conspiracy "unless
he himself committed or agreed
to commit the two predicate acts requisite for a substantive RICO offense
under § 1962(c)." Salinas, 522
U.S. at 61 (emphasis added). The Supreme Court rejected this argument and explained:
A conspirator must intend to further an endeavor which, if completed,
would satisfy all of the elements of a substantive criminal offense,
but it suffices that he adopt the goal of furthering or facilitating
the criminal endeavor. He may do so in any number of ways short of agreeing
to undertake all of the acts necessary for the crime's completion. One
can be a conspirator by agreeing to facilitate only some of the acts
leading to the substantive offense.
It is elementary that a conspiracy may exist and be punished whether
or not the substantive crime ensues, for the conspiracy is a distinct
evil, dangerous to the public, and so punishable in itself.
It makes no difference that the substantive offense under subsection
(c) requires two or more predicate acts. The
interplay between subsections (c) and (d) does not permit us to excuse
from the reach of the conspiracy provision an actor who does not himself
commit or agree to commit the two or more predicate acts requisite to
the underlying offense.
Id. at 65 (citation omitted) (emphasis added). (5) Thus, it is clear that to establish a violation of § 1962(d) (RICO conspiracy),
the United States is not required to prove that the defendant - or any defendant
- actually committed two racketeering acts.
Accordingly, the United States respectfully requests
that the Court strike the portions on pages 9, 14, 16, 18, and 19 of the slip
opinion that are inconsistent with Salinas, (6) and replace those portions with language that makes clear that
a defendant may be liable for a RICO conspiracy under 18 U.S.C. § 1962(d)
if the evidence establishes that the defendant agreed that it or another member
of the RICO conspiracy would commit two racketeering acts in furtherance of
the affairs of the RICO enterprise, even if no racketeering acts were committed
by any defendant, or facilitated
or knowingly agreed to facilitate the commission of a RICO offense by another
conspirator. Salinas, 522 U.S.
at 65-66; accord Brouwer
v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir.
2000); United States v. Phillips,
874 F.2d 123, 127-28 & n.4 (3d Cir. 1989); and cases cited supra at n.4.
For the foregoing reasons, the United States'
Motion to Modify the Memorandum Opinion of the Court Granting B.A.T Industries
P.L.C.'s Motion To Dismiss the Complaint for Lack of Personal Jurisdiction should
be granted. The Court may also decide, in light of this Motion, to reconsider
its dismissal of BAT Ind. for lack of personal jurisdiction.
Acting Assistant Attorney General
Assistant Attorney General
Assistant Attorney General
October 13, 2000
Y. Eubanks (D.C. Bar #420147)
Tobacco Litigation Team
M. Honigberg (D.C. Bar #342576)
Deputy Director, Tobacco Litigation Team
Senior Litigation Counsel
Crime and Racketeering Section
N. Goldfarb (D.C. Bar #455751)
C.J. Lisa (D.C. Bar #457739)
M. Rennert (D.C. Bar #444087)
Department of Justice
Pennsylvania Avenue, N.W.
for the Plaintiff United States of America
should the Court consider its September 28 Order a final judgment, the Court
may consider the instant Motion to be filed pursuant to Fed. R. Civ. P. 59(e).
2. B.A.T Industries
P.L.C. ("BAT Ind.") apparently raised the issue for the first time in its reply
brief, although the BAT Ind. brief was unclear as to whether it was referring
to § 1962(c) or § 1962(d). See
BAT Ind.'s Reply Memorandum of Points and Authorities in Support of Its Motion
To Dismiss the Complaint for Lack of Personal Jurisdiction at 28 n.21.
3. Those principles
establish that conspiracy is an inchoate offense and that, therefore, a defendant
may be liable for a conspiracy offense even if the offense that is the object
of the conspiracy was not actually committed by the defendant or any other conspirator.
See, e.g., United
States v. Feola, 420 U.S. 671, 694 (1975); United
States v. Bayer, 331 U.S. 532, 542 (1947); United
States v. Rabinowich, 238 U.S. 78, 86 (1915). Indeed, a defendant may
be liable for a conspiracy offense even if he was incapable of committing the
substantive offense. See Rabinowich,
238 U.S. at 86.
4. Prior to
Salinas, every federal Court
of Appeals that had decided the issue had agreed that a defendant's liability
for a RICO conspiracy does not require proof that a defendant committed any
racketeering act. See, e.g.,
United States v. Zauber, 875
F.2d 137, 148 (3d Cir. 1988); United
States v. Caporale, 806 F.2d 1487, 1515 (11th Cir. 1986); United
States v. Teitler, 802 F.2d 606, 612-13 (2d Cir. 1986) (collecting cases);
United States v. Neapolitan,
791 F.2d 489, 498 (7th Cir. 1986); United
States v. Adams, 759 F.2d 1099, 1116 (3d Cir. 1985); United
States v. Brooklier, 685 F.2d 1208, 1222-23 (9th Cir. 1982); United
States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1971).
5. Indeed, §
1962(d) does not require any overt act at all by a conspirator. Section 1962(d)
is "even more comprehensive than the general conspiracy offense" under federal
law because the RICO provision contains "no requirement of some overt act or
specific act." Salinas, 522
U.S. at 63.
6. The portions
of the Court's opinion that concern the United States are as follows:
addition, because the Government accuses BAT Ind. of participating in a conspiracy
under RICO, an additional element is added to the . . . definition of a common
law civil conspiracy. Under RICO, each defendant must have committed 'at least
two acts of racketeering activity, one of which occurred after the effective
date of this chapter and the last of which occurred within ten years . . .
after the commission of a prior act of racketeering activity.' 18 U.S.C. §
1961(5). The Government has failed to make a prima facie showing of the four
elements of a civil conspiracy as well as the fifth element necessary to its
claim that BAT Ind. participated in a RICO conspiracy . . . ." Slip op. at
RICO, a conspiracy consists of two or more acts of racketeering committed
within a ten year period." Slip op. at 14.
- "[T]he Government must show that BAT Ind. committed at least two acts of racketeering
within ten years of each other." Slip op. at 16.
Government alleges that BAT Ind. participated . . . in a RICO conspiracy . . . .
Thus the Government fails to make a prima facie showing of a RICO pattern
of racketeering . . . ." Slip op. at 18.
addition to its failure to show that BAT Ind. participated
in two particular, specific acts of racketeering . . . the Government
also fails to show that BAT Ind. participated in the creation and organization
of the alleged conspiracy." Slip op. at 19 (emphasis added).