United States v. Charles Bruce Nabors and Craig Scott Keltner

MORRIS SHEPPARD ARNOLD, Circuit Judge.

By a second superseding indictment filed in federal district court in April, 1993, the government charged that between late 1990 and mid-1992, Charles Nabors and Craig Keltner were members of a racketeering enterprise. That charge was one of 11 counts in the indictment. Both defendants moved to dismiss that count, contending that it was insufficient as a matter of law. The district court granted the motion. The government appeals. We reverse the order of the district court.

I.

Under the federal rules, an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” See Fed.R.Crim.P. 7(c)(1). “[A]n indictment is [constitutionally] sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables' him to plead an acquittal or conviction in bar of future prosecutions for the same offense- It is generally sufficient that an indictment set forth the offense in the words of the statute itself, *240as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ ” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). “Indictments are normally sufficient unless no reasonable construction can be said to charge the offense.” United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir.1989).

The challenged count of the indictment alleges that the defendants are guilty of violating the statute that makes it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” See 18 U.S.C. § 1962(c). The exact language of the racketeering count charges that the defendants “and others constituted an enterprise as defined in [the statute], that is: a group of individuals associated in fact for the purpose of obtaining monetary benefits for its members”; that the defendants were “employed by and associated with the enterprise”; that the enterprise “was engaged in, and [its] activities ... affected, interstate and foreign commerce”; and that the defendants “knowingly, and willfully did conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity,” namely, various specified acts of armed robbery, kidnapping, interstate transportation of stolen property, attempted bank robbery, and mail and wire fraud.

Even though the language of the racketeering count tracks the statute almost exactly, the defendants contended that the indictment was insufficient by virtue of its failure to allege “a single continuous RICO ‘enterprise’ with an existence of its own.” The district court agreed, holding that the racketeering count fails to identify “a RICO enterprise distinct from the culpable persons, the defendants”; fails to allege “any continuity of personnel ... [or] structure”; and fails to describe “an ascertainable structure distinct from that in a pattern of racketeering.” The Supreme Court has stated that “[a] violation of [18 U.S.C.] § 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiff [in this case, the government] must, of course, allege each of these elements to state a claim.” Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). The district court held, essentially, that the racketeering count fails to allege an “enterprise.”

II.

“[A] RICO enterprise must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that in a pattern of racketeering.” Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 995 (8th Cir.1989). The racketeering count of the indictment clearly states that the defendants “and others” are the enterprise. The district court held, however, that because the government failed to identify any members of the enterprise other than Mr. Keltner’s brother, there could be no “enterprise” in this ease, as a matter of law. This is because, according to the district court, an enterprise may not be comprised “of only the defendants.”

That holding of the district court is wrong, for two reasons. First, the government does not have to name the other members of the alleged enterprise until trial. There being no equivalent in criminal procedure to the motion for summary judgment that may be made in a civil case, see Fed. R.Civ.P. 56(c), the government has no duty to reveal all of its proof before trial. Under certain circumstances, of course, a defendant may move for a bill of particulars. See Fed. R.Crim.P. 7(f). Neither defendant did so, however, in this case. Second, the case law of this circuit specifically holds that a “collective entity is something more than the members of which it is comprised” and that individual defendants who are members of an enterprise may indeed be found guilty (or liable) under 18 U.S.C. § 1962(c) even if the enterprise is made up solely of those defen*241dants. Atlas Pile Driving Co., 886 F.2d at 995.

The district court also held that because Mr. Keltner’s brother withdrew from the enterprise in early 1991 (three months after the enterprise allegedly began the racketeering acts charged to it), there was no continuity of personnel. That holding fails to take into account United States v. Kragness, 830 F.2d 842, 856 (8th Cir.1987), which notes that “old members [of an enterprise] may leave, and new members may join, ... [but] the personnel of an enterprise may undergo alteration without loss of the enterprise's identity as an enterprise.” Indeed, this circuit’s definition of an enterprise specifically includes the phrase “some continuity ... of personnel” (emphasis supplied), Atlas Pile Driving Co., 886 F.2d at 995, not “complete continuity.”

The racketeering count charges that Mr. Nabors “was the leader of the enterprise and functioned as the primary planner and decision maker” and that Mr. Keltner “was a member of the inner core of the enterprise and functioned as a lookout, driver and, later, a principal assistant” to Mr. Nabors. The district court held, however, that because the indictment “indicates that [the defendants] were engaged in nothing more than sporadic criminal activity,” the racketeering count fails properly to allege continuity of structure, that is, “an organizational pattern or system of authority that provides a mechanism for directing the group’s affairs on a continuing, rather than an ad hoc, basis,” United States v. Kragness, 830 F.2d at 856. See also United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 960 (1983) (“[t]o guarantee that RICO will be utilized against its intended target, the ‘enterprise’ alleged must involve more than an association of elimináis for the commission of sporadic crime”).

The racketeering count alleges at least 15 different illegal acts committed over a seven-month period between late 1990 and mid-1991. As we have indicated above, it is up to the government to prove at trial that those alleged acts amounted to more than “sporadic crime,” United States v. Lemm, 680 F.2d at 1198. That proof, however, need not be offered until trial. Of course, if the government fails in that burden at trial and the district court grants a judgment of acquittal on the racketeering count at the close of the government’s case, see Fed.R.Crim.P. 29(a), the government runs the risk of a mistrial because of the admission of evidence with respect to those illegal acts, only seven of which are charged in counts separate from the racketeering count. See, in an analogous context, United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978); see also United States v. Reda, 765 F.2d 715, 721 (8th Cir.1985). The decision to wait until trial and then run that risk, however, is the government’s to make.

The same is true of the question of whether the enterprise is “distinct from the alleged pattern of racketeering activity,” Stephens, Inc. v. Geldermann, Inc., 962 F.2d 808, 815 (8th Cir.1992); see also Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 770 (8th Cir.1992) (“[t]he focus of the inquiry is whether the enterprise encompasses more than what is necessary to commit the predicate RICO offense”). The district court relied on Stephens, Inc. in holding that the racketeering count fails to describe “an ascertainable structure” separate from the illegal acts listed as racketeering offenses. That opinion, however, dealt with summary judgment in a civil case. See Stephens, Inc., 962 F.2d at 809-10, 815. As noted above, the question of the sufficiency of an indictment in a criminal case is a different one altogether.

III.

For the reasons stated, we reverse the order of the district court.