United States v. Richard A. Davis

OPINION OF THE COURT

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).¹ 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.A. § 4701(a).² 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.A. § 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.A. § 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,³ 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 hold instead that the indictment was sufficiently specific and that the charge was correct.

III. EVIDENCE OF OTHER CRIMES

In addition, Davis urges that the trial judge erred when he permitted witnesses Sedesche and Myers to testify concerning other crimes of a similar nature. We have recently reaffirmed the importance of avoiding the undue prejudice which arises from the admission of evidence concerning prior crimes which has little probative value for the issues being tried. See United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). In this case, however, the testimony of Sedesche and Myers was relevant to Davis’s motive or intent in accepting the money tendered. The evidence was, therefore, admissible under Fed.R.Ev. 404(b).

IV. MOTION FOR JUDGMENT OF ACQUITTAL

Davis’s final contention is that his motion for a judgment of acquittal should have been granted. In light of the record, this contention is frivolous.

V. CONCLUSION

The judgment of the district court will be affirmed.

1 . Title IX of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, tit. IX, 84 Stat. 941 (codified in 18 U.S.C. § 1961 et seq.).

2 . 18 Pa.C.S.A. § 4701(a):

Offenses defined. — A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:

(1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;

(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or

(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.

Prior to June 6, 1973, a comparable statute was codified in 18 P.S. § 4303.

3 . The court charged:

In Count II it is not necessary for the government to show that the Defendant had the authority to assist inmates in securing special favors, nor need the government show that the Defendant did anything at all to assist the inmates. The issue is not whether the Defendant successfully aided the inmates, but whether he agreed to accept money from two or more of the persons named out of the five, who expected that he would provide assistance in return for the money.

App. 812.