UNITED STATES of America, Plaintiff-Appellee, v. Carl SUTTON, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert Rankin, Samuel Lee Harris, Charles Edward Craven, Viola Holmes, Defendants-Appellants, 642 F.2d 1001

EDWARDS, Chief Judge. This appeal has been heard en banc before the United States Court of Appeals for the Sixth Circuit. The case was originally heard by a three-judge panel of this court which reversed the convictions of the appellants involved herein by a 2-1 vote. A motion for rehearing en banc filed by the United States was granted by majority vote of the full court. I. THE TITLE IX “ENTERPRISE” ISSUE A.

Introduction The principal issue posed in this case is whether or not a major criminal statute, Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. § 1961 et seq. (1976), adopted by Congress after lengthy consideration over a period of nearly 20' years, should be interpreted by the courts by changing the single word “enterprise” (used repeatedly therein without adjectives) to mean “ostensibly legitimate enterprise.” The basic argument is that Congressional concern about the impact of organized crime and racketeering, upon legitimate businesses was clearly demonstrated in Congressional hearings and reports which preceded the adoption of this statute in 1970.

Therefore, appellants reason, this statute must be construed to be applicable only in cases where the criminal activity involved is shown to be “ostensibly legitimate.” Appellants have not pointed to any language in the statute itself which supports their contention. On the contrary, they rely entirely upon implications which they find in legislative history and certain canons of statutory construction to argue for this judicial amendment.

We believe, however, that the statute itself makes plain that Congress intended to bring the full force of federal law enforcement into the effort to destroy organized crime and that it had no intention of limiting the federal effort to just those “ostensibly legitimate” enterprises which organized crime might use. The cardinal rule of statutory

interpretation is that the statute should be interpreted by the courts as written, unless it contains an ambiguity. As we will show in

Section III of this opinion, we find no ambiguity in the term “enterprise” as used in the statute. Congress recognized that the illegitimate enterprises of organized crime which it was concerned about would frequently make use of or subvert or seek to dominate otherwise lawful enterprises to a greater or lesser degree, and deliberately employed the term “enterprise” without qualification. Congress’ deep concern with this problem is exemplified in the history of the extensive hearings of the Special Senate Committee to Investigate Organized Crime in Interstate Commerce in the years 1950 and 1951.

In these years Senator Kefauver and his associates conducted hearings on organized crime in all major cities in the nation exposing to public view for the first time the successful operation of many forms of racketeering. The results of the Kefauver investigations were such as to show Congress that in most major population centers illegal activities such as gambling, prostitution, loansharking, fencing and drug traffic were under the domination of organized crime through the employment of intimidation, murder and corruption.

The impact of these revelations did not, however, arouse state and local governments to take effective measures against organized crime.

When in the ’60’s Congress turned its attention again to this problem, the records of the Permanent Subcommittee on Investigations of the Committee on Government Operations, 1963-1970, show clearly that Senator McClellan and his associates found that criminal organizations functioning on an interstate basis were able to evade, avoid, or, in some cases, corrupt the 50,000 separate and independent police departments of the United States to a degree that let organized crime flourish almost without interference in the biggest metropolitan areas of the nation.

This record convinced the Committee that interstate racketeering should be made a matter of direct federal concern. It was out of these hearings that Title IX of the Organized Crime Control Act of 1970, named the “Racketeer Influenced and Corrupt Organizations Act” was born on October 15 in 1970.

Appellant Sutton and his associates argue that the government failed to plead and prove that the nine appellants in this case had engaged in an enterprise which was “ostensibly legal.” Hence, they argue that defendants’ enterprise by being totally illegal should escape the augmented penalties for their crimes authorized by this federal statute. In short, it is asserted that this statute, so long and carefully considered by Congress, should be interpreted so as to require the prosecution to prove a negative: that an organized crime operation is not totally illegal.

If it is totally illegal, under appellants’ view, it becomes exempt from the strictures of Title IX of the Organized Crime Control Act of 1970.

In addition, on this record it must likewise be argued by appellants that even if the indictment alleges and the proofs show continual use of various ostensibly legal businesses for the purposes of the illegal enterprise and serious adverse impact on others, these facts are insufficient unless the government has proved that the criminal enterprise itself was “ostensibly lawful.” The seven large volumes recording this six week trial show a picture of a centrally directed criminal enterprise involving at least five racketeer-influenced or racketeer-impacted business organizations to commit the offense of trafficking in drugs on a wide scale, supported by ancillary illegal activities of trafficking in stolen jewelry, household goods, and guns.

Since we find no reason for such a strained construction in the statutory language itself, nor, as we will detail below in

Section IV, in its legal history, we decline the appellants’ invitation to emasculate Title IX of the Organized Crime Control Act of 1970.

To conclude this introductory section, we point out that in affirming a prosecution under Title IX of the Organized Crime Control Act of 1970, the Supreme Court of the United States, dealing with arguments very similar to those we have referred to above and will discuss in detail later, quoted from the findings of fact which preceded the Act itself as follows: The basic purpose of the Organized Crime Control Act of 1970, Pub.L.No. 91-452, 84 Stat. 922, 923, was “to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” The content of the Act reflects the dedication with which the Legislature pursued this purpose.

Iannelli v. United States, 420 U.S. 770, 786, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975) (emphasis added). B. The Indictment and Trial The indictment in this case named five persons as key figures in the operation of a substantial criminal conspiracy.

These five were Herschel Weintrub, the manager of Spencer’s Jewelry, Middletown, Ohio; Carl Sutton, Jr., alleged to have been with Weintrub “partners in the illegal enterprise described in this indictment”; Edwin Arthur Adams, proprietor of Edwin’s Jewelry, Franklin, Ohio; Joseph Elkins, an officer of the John Carter Exterminating Company, Cleveland, Ohio; and, Dyeatra Ann Carter, an officer of the John Carter Exterminating Company, Cleveland, Ohio.

Four other appellants, Hensley, Harris, Craven and Rankin, were indicted as important figures in the distribution of narcotics and interstate traffic in stolen goods acquired by the “enterprise.” The ninth defendant in this trial, Viola Holmes, was indicted as a “runner” in the drug traffic between Sutton in the Cincinnati area and Carter and Elkins in Cleveland. In number of counts (and convictions on same) the largest aspect of the “enterprise” involved in this case was the buying, possessing and selling of narcotics.

Counts 1 and 2 of the indictment alleged that appellants and others not involved in this appeal “did unlawfully, wilfully, and knowingly combine, conspire, confederate and agree together and with each other and with ninety-six other persons, none of whom are named as defendants herein, and with diverse other persons whose names are to the Grand Jury unknown, to commit an offense against the United States, that is: To knowingly conduct and participate directly and indirectly in the conduct of the affairs of an enterprise which was engaged in, and the activities of which affected interstate commerce, said enterprise being an unlawful business enterprise engaged in distribution of controlled substances, interstate transportation of stolen property, receipt of stolen property transported in interstate commerce, and mail fraud, in the Southern District of Ohio and elsewhere.” The indictment further alleged that Sutton and Weintrub obtained heroin “which had previously been imported into the United States from Elkins and Carter in Cleveland and sold same to Adams and other of the appellants, for ultimate distribution on the street.” The money for the purchases from Elkins and Carter was initially supplied, according to the indictment, by Herschel Weintrub, who is not involved in this appeal, since he has pled guilty and been sentenced.

Each of the appellants was convicted of conducting the affairs of an “enterprise” affecting interstate commerce through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (1976), and of conspiracy to commit that offense, in violation of 18 U.S.C. § 1962(d) (1976). The jury returned guilty verdicts as to the nine appellants on 308 counts. Each of the appellants was also convicted on three or more counts alleging substantive drug offenses, primarily possession and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) (1976).

In addition, appellant Hensley was convicted on 13 counts of receipt by a convicted felon of firearms shipped in interstate commerce and unlicensed dealing in firearms, in violation of 18 U.S.C. § 922(

h) and 18 U.S.C. § 922(a) (1976). In addition, appellant Adams was convicted of transporting or receiving stolen property in interstate commerce, in violation of 18 U.S.C. §§ 2314-15 (1976), and both appellants Adams and Hensley were convicted on numerous counts of mail fraud. The jury returned not guilty verdicts on 37 counts charged against Sutton, Harris, Carter, Craven, Rankin, Hensley and Holmes. Most of the acquittals were on mail fraud counts and 25 of the acquittals were applicable to appellant Sutton. Sutton was also acquitted on one count of distributing a controlled substance.

Appellant Harris was acquitted on one count of possessing a controlled substance with intent to distribute. Appellant Hensley was acquitted on three counts of receiving firearms shipped in interstate commerce. The District Judge sentenced the appellants to prison terms ranging from five to 93 years and three years special parole. Seven of the sentences exceed 60 years. The individual sentences are set out in Appendix A to this opinion. C. Statutory Construction If the meaning of a criminal statute adopted by Congress is clear and unambiguous, then there is no need for the courts to turn to

interpretation by means of legislative history or rules of statutory construction. Very recently the Supreme Court in a unanimous opinion has reminded us, “It is elementary that ‘[t]he starting point in every case involving construction of a statute is the language itself.’ Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring); see Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Sante Fe Industries, Inc. v.

Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977).” Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). Title IX, the

section which each of these defendants is charged with violating, provides in applicable part: It shall be 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 or collection of unlawful debt. 18 U.S.C. § 1962(c) (1976).

We have previously noted that the dispute in this case concerns the meaning of the term “enterprise.” Enterprise is a common English word which, as indicated in Webster’s Third New International Dictionary Unabridged, means: a. a plan or design for a venture or undertaking b. venture, undertaking, project; esp: an undertaking that is difficult, complicated, or has a strong element of risk c. a unit of economic organization or activity d. any systematic purposeful activity or type of'activity. These

definitions are all absolutely neutral on the question of whether a particular enterprise is lawful or unlawful. Congress itself, however, recognized that the meaning of enterprise was of critical importance in the statute and hence provided a supplementary statutory definition. 18 U.S.C. § 1961 begins with

definitions, and the fourth one reads: “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; .... ” (Emphasis added.) It should be noted that in this definition, the word “enterprise” is used without any modifiers, and the same word is employed throughout Title IX without modifiers (except, as we will point out below, the word “any”). Obviously Congress would have known how to characterize an illegal enterprise or a legal enterprise had it seen fit to do so.

Its choice of the single word “enterprise” and its actual definition of it seems to us of major importance. Over and above the fact that Congress used the word “enterprise” without modifiers, its definition clearly includes both legal entities and “any ... group of individuals associated in fact although not a legal entity.” Further, under the second

section of the statute entitled “Prohibited Activities,” subsections (

b) and (e), Congress employed the word “enterprise,” modified by the word “any”; thus, subsection (

c) provides: “It shall be 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 or collection of unlawful debt.” The use of the term “any” before “enterprise” helps make clear that “enterprise” is used in an all encompassing sense. This certainly includes both legal and illegal enterprises. In this regard the Second Circuit in United States v.

Altese, has said: In the light of the continued repetition of the word “any” we cannot say that “a reading of the statute” evinces a Congressional intent to eliminate illegitimate businesses from the orbit of the Act. On the contrary we find ourselves obliged to say that Title IX in its entirety says in clear, precise and unambiguous language — the use of the word “any” — that all enterprises that are conducted through a pattern of racketeering activity or collection of unlawful debts fall within the interdiction of the Act. United States v.

Altese, 542 F.2d 104, 106 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977). Title IX of the Organized Crime Control Act of 1970 is entitled “Racketeer Influenced and Corrupt Organizations.” By these terms Congress included both ostensibly legitimate businesses availed of for criminal purposes (such as Edwin’s Jewelry Store, the Spencer’s Jewelry Store Co., of Middletown, Ohio, and the Carter Exterminating Company of Cleveland and the wholly corrupt organizations such as the narcotics distribution organizations operated by appellants Rankin, Craven, Hensley and Harris.

It seems clear that an enterprise engaged in or affecting interstate commerce becomes subject to the criminal sanctions of Title IX when, and only when, it is conducted “through a pattern of racketeering activity.” In still another and longer

section of the definition portion of the statute, Congress defined the specific crimes which are encompassed in the term “racketeering activity.” Appellants were charged, as we have noted above, with an activity and offenses which violated 18 U.S.C. §§ 1962(

c) and (d). These two sections provide: (

c) It shall be 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 or collection of unlawful debt. (

d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (

c) of this section. 18 U.S.C. §§ 1962(c), (d) (1976). The elements of the crime charged in (

c) are: 1) engaging in an enterprise, 2) affecting interstate commerce, 3) conducted through a pattern of racketeering, and 4) involving two or more statutorily-named racketeering crimes. It requires some imagination to believe that any one of these appellants was in any doubt about the illegality of buying, possessing and selling narcotics; buying, possessing and selling stolen property which had moved in interstate commerce; and buying, possessing and selling stolen guns which had moved in interstate commerce.

It is, of course, certainly possible that they were not familiar with the augmented penalties provided by the Organized Crime Control Act of 1970, but its passage has been the subject of far more public notice than the great majority of criminal statutes adopted by the federal government, and the statute had been fully effective since October 15, 1970. To summarize this review of the critical statutory language, we point out that an

interpretation of the statute which would restrict the use of the term “enterprise” to “ostensibly legitimate” enterprises would commit the following errors of construction. First, it would read out of the statute the statute’s own definition of “enterprise” which includes “group of individuals associated in fact although not a legal entity.” Second, it would read out of the statute the meaning of the words “any enterprise,” as used in the statute.

And third, it would read into the statute without any justification therefor the vague phrase “ostensibly legitimate” as a modifier for the word “enterprise” which Congress had seen fit to employ alone. We do not believe that there is any ambiguity to be found in the use of the word “enterprise” in 18 U.S.C. §§ 1961 and 1962. As a consequence, we see no occasion for employment of the well known canon stated in Rewis v.

United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” This is particularly emphasized by the fact that Congress provided specifically that Title IX (the Racketeer Influenced and Corrupt Organizations Act), “Be liberally construed to effectuate its remedial purposes.” Pub.L.No. 91-452, Title IX § 904(a), 84 Stat. 947 (1970).

Nor do we believe that there is any conflict, overlapping, or ambiguity created by the statute’s employment of the terms “enterprise” and “pattern of racketeering activity.” Congress itself defined both of. these terms in simple and understandable language: (4) “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (5) “pattern of racketeering activity” requires 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 (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; .... 18 U.S.C. §§ 1961(4), (5) (1976). “Enterprise” in the context of this case clearly refers to the organization in which these nine defendants (and others) joined to conduct the organization’s affairs. “Pattern of racketeering activity” refers to the various criminal activities (named by statute) engaged in by the “enterprise.” D.

The “Ostensibly Legitimate” Enterprise Issue The concerns which motivated the majority of the panel in its decision at initial hearing of this case were not frivolous ones. Briefly put, they appear to be these. Some of the deepest concerns of Congress about organized crime came from testimony about major interlocking interstate criminal conspiracies like the Mafia. Many of these criminal activities had serious impact on legitimate businesses.

The statute as drafted, however, also strikes at criminal organizations which have much less in the way of financial and manpower resources than those which drew most Congressional attention. These might be subject to appropriate control and suppression through traditional state law enforcement. Therefore, argued the majority of the panel, the statute should be construed under the principle that lenity should be required so that the government must allege and prove that the conspiracy involved in the indictment had an impact on legitimate business, in accordance with one of Congress’ deep concerns.

This would be accomplished by judicially modifying the word “enterprise,” as used by Congress, to read “ostensibly legitimate enterprise.” The majority of the original panel put the matter this way: Two of the canons courts traditionally follow in construing criminal statutes also counsel us not to stray from the path marked out by the legislative history. The first of these is that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” Rewis v.

United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), unless the legislature has spoken “plainly and unmistakably” to the contrary. United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). When as in this case the legislative history speaks “plainly and unmistakably,” but in support of resolving the statute’s ambiguity in favor of the construction argued by defendants, the maximum applies with special force and tells us that we ought not to strain to accommodate the government’s desire for a broader construction.

The other canon that guides us is that, “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). To be sure, even under appellants’ view, RICO still represents a substantial incursion into state criminal jurisdiction.

But the government’s construction would take us much further into areas traditionally left to state regulation by making a federal felon out of “any individual” or any member of a “group” who has committed any two of the broad range of state offenses denominated “racketeering activity” under section 1961(1). We do not seriously doubt the power of Congress to undertake such a bold expansion of federal criminal jurisdiction.

But we will not simply assume that Congress has done so with this statute, when the text, at best, is ambiguous on the matter and the legislative history suggests a different construction that would not alter the traditional division of responsibilities between federal and state governments quite so radically. For all of these reasons, we are persuaded to construe

section 1962(

c) in the manner appellants have suggested. We therefore hold that an “enterprise” within the meaning of the statute is “any individual, partnership, corporation, association . . . and any union or group of individuals associated in fact,” that is organized and acting for some ostensibly lawful purpose, either formally declared or informally recognized.

Section 1962(

c) is violated whenever any person associated with such an enterprise conducts its “affairs,” i. e., undertakes any activity on behalf of or relating to the purposes of the enterprise, by committing at least two criminal acts constituting a “pattern of racketeering” as defined in section 1961(5). Since appellants’ numerous acts of racketeering were not shown to have been related in any way to the affairs of such an enterprise, we reverse their convictions under

section 1962(

c) for conducting the affairs of an enterprise through a pattern of racketeering activity and their convictions under

section 1962(

d) for conspiracy to commit that offense. United States v. Sutton, 605 F.2d 260, 269-70 (6th Cir. 1979). In

Section I.(C.) of this opinion we have pointed out that we find no ambiguity in the statute, and hence find no warrant to do other than accept the statute as Congress- wrote it. Alternatively, however, the record in this case fully supports affirmance of these convictions if a requirement of use of or impact on ostensibly legitimate businesses were to be found as a derivative of the legislative history of the Organized Crime Control Act of 1970.

The indictment alleged and the proofs in this case show clearly that Edwin’s Jewelry Company of Franklin, Ohio, was extensively used by this conspiracy, both as a locale for the transaction of business in narcotics and stolen goods, and as a conduit for the disposition of stolen goods. In this regard the indictment charged: 8.

It was part of said conspiracy that EDWIN ARTHUR ADAMS used his place of business, Edwin’s Jewelry, to carry on the business of said enterprise by obtaining heroin and other controlled substances from HERSCHEL HAROLD WEINTRUB and CARL SUTTON, JR., by distributing said heroin and other controlled substances to other distributors, by obtaining and reselling stolen property, and by using the proceeds of sales of stolen property to finance purchases of heroin and other controlled substances from HERSCHEL HAROLD WEIN-TRUB and CARL SUTTON, JR. 24.

On or about June' 14, 1976, EDWIN ARTHUR ADAMS met with a Special Agent of the FBI acting in an undercover capacity and told said Special Agent that he used his place of business, Edwin’s Jewelry, to obtain and to resell stolen merchandise. The evidence repeatedly showed that Adams met this “enterprise’s” principals and agents at his ostensibly legal place of business and did a brisk trade in narcotics and various kinds of stolen goods with them. FBI Agent Owens’ direct testimony established that Adams sold both narcotics and stolen goods to him. Adams’ deals were generally made in the jewelry store.

Acting entirely independent of Owens, Cincinnati Police Officer Arkenau met Adams at Edwin’s Jewelry while posing as someone who supplied narcotics and stolen goods to students at the University of Kentucky in Lexington. On that day he bought heroin from Adams and was offered a stolen stove and two stolen firearms, both of which he later bought. The indictment also charged and the proofs at trial showed that a substantial quantity of watches and jewelry stolen in a burglary of the Miller’s Jewelry Store in South Dakota ended up for sale in Edwin’s Jewelry in Franklin, Ohio.

The emphasis we place upon the role of Edwin’s Jewelry and its proprietor Edwin Adams is further demonstrated by the evidence concerning its central position in the enterprise charged and proved in this organized crime prosecution. Cincinnati Policeman Arkenau testified: Q. Now, after you had made your purchase, Sergeant Arkenau, did you talk to Edwin about any other matters other than the heroin that he sold you? A. Yes, we did. We continued our discussion on stolen property of what I would be able to sell down at the University.

I mentioned that stereo equipment, typewriters and adding machines were items that students would be able to use in the dorms if they were cheap, and they were items they could purchase and I could turn them over if he could obtain them. He produced, or Edwin produced a list of stereo equipment on a sheet of paper. There were several sheets of paper sta- » pled together or rolled up together, and I reviewed it and said that these were the type of items I could probably get rid of down at the University. There were about eight complete sets of stereo equipment on this list. Mr. Adams produced a list of 45 guns.

This was on a sheet of paper, and it had a list of different types of guns on it, and at the bottom there was a number 45, and next to it was the number $5,000 — I don’t think that was the whole number, but it was five thousand and some odd dollars. At this time, Edwin related the guns were worth approximately $300 apiece and that Otis had sold them all for $20 apiece, and that he had messed up the sale, and they were trying to get that straightened out. Q. What, if any, discussions did you have with Mr. Adams concerning the organization or its operation in any aspect? A.

After we discussed the stolen property goods, I started to talk about the heroin operation. Edwin related to me the entire setup of how the operation was started out and how it was founded. Edwin related that the main individual who started the organization was an individual they called J.P., the initials of J.P., and he was the head of the organization several years ago.

He also then started to tell me that the organization was split up among three of J.P.’s trusted friends, and one of these three individuals Edwin Adams and Herschel Weintrub had met, and this individual they mentioned by the first name of Carl, and Carl did not have the money to back the operation, so they went to Herschel and Edwin to finance the operation, and Carl would furnish the drugs. During this time, Edwin said they buy their heroin a kilo at a time for approximately $20,000 a kilo, and it would be in the vicinity of 20 percent pure by the time they got it.

We discussed the heroin, and Edwin said when he first started the operation, they would take the 20 percent pure heroin, package it up and immediately put it out on the street. They received some complaints from a man in Dayton who apparently shot the heroin, and it was too strong for him. He started to overdose, or he did overdose, and they started then to cut it down. Well, then they got a complaint from the Cincinnati area that the heroin they were supplying to Cincinnati was too weak.

With this, Edwin packaged up what he called a T of heroin and took it to Cincinnati and met with this man, one of their main suppliers in Cincinnati, he met with him and brought the heroin with him. This supplier called the heroin addict to his house, and at this time this addict shot up some heroin, and Edwin mentioned his head immediately hit the table. The dealer in Cincinnati apologized to Edwin for calling him down. Apparently, the heroin addict or junkie was recutting the heroin to try to make himself some money. Edwin then stated that it would cost him $7,000 and Herschel $7,000.

They would pool their money together and then Carl would furnish the other money, and they would go together and Carl would pick up the heroin to be distributed. The conversation of Edwin related this story, and we went on to the purchase of the firearms afterwards. Q. In relationship with that, did you buy anything else from Mr. Adams on that date? A.» Yes, I did. After talking about the heroin operation, Mr. Adams had on the table a .45-ealiber Star automatic weapon that I previously looked at and wanted to buy and agreed to pick up this date. He slid the gun over to me. I examined it.

Inside the package was a slip of paper with the name of Pedro Pete Muscari written on it with the address of Pete Muscari and an address of Breezeway Motor Court, Middletown, Ohio. This was inside the plastic box. Also inside the box was the weapon and the magazine. Q. Now, you had stated that you purchased this gun. Did you pay an additional amount for this gun or did it come with your other purchase that day? A. No, I had to pay another hundred dollars for the gun. Edwin made a phone call. First the gun was offered to me for $150, and I wouldn’t pay $150 for the gun.

Edwin made a phone call, and stated that Dan was here. Well, when he called, he asked, “Is he there?” Then, Edwin stated that Danny was up here and wanted to buy the gun and would they sell it for a hundred dollars. Apparently, the man agreed to sell it to me for a hundred dollars. Edwin nodded. I then gave Edwin — at first I gave him $800 trying to save myself some money, and Edwin counted it out and told me I owed him another $50, so I paid him a total of $850, $750 for the heroin and another hundred for the gun. Q.

Would the clerk please hand the witness Government’s Exhibit 18? (Government’s Exhibit 18 handed to the witness.) Sergeant Arkenau, have you examined Government’s Exhibit 18? A. Yes, I have. Q. And what is it? A. That is a Star .45-caliber automatic . weapon with a magazine in a plastic box containing the weapon and a slip of paper with the name of Pete Muscari, Breezeway Motor Court, Middletown, Ohio. All of these have my badge number, 262, and the date of August 4, 1976, inscribed on them. Q.

Would you hold that gun up a little bit so we can see it? (Gun held up.) Did you discuss any potential future purchases of heroin with Mr. Adams? A. Yes, we did. After I purchased the gun, we continued to talk. Edwin was telling me about how easy it was to be a fence or a dealer of stolen merchandise. Since he was in the jewelry-type business, he could purchase items and melt them down and remake them since he had a certain type of manufacturer’s license.

I told him I didn’t know a whole lot about the jewelry business, whether it was a good diamond or bad diamond, and so forth, and he explained that it was real easy to be a jewelry fence in the legitimate business of a jewelry store. On May 11 Agent Owens (iii his undercover role) was told by Adams that his heroin suppliers were “Carl” and “Herschel.” Carl Sutton and Herschel Weintrub and appellant Otis Hensley were repeatedly identified and photographed at Edwin’s Jewelry.

Hensley, whose stolen goods were frequently sold by Adams through use of Edwin’s Jewelry, told Agent Arkenau that he had 12 burglary rings working for him: Q. After the discussion you just outlined, what, if anything, happened next? A. After we left the restaurant, we went back to Edwin Adams’ store in Franklin, Ohio. We started talking about my being able to pick up adding machines and typewriters, and so forth, to sell down at the University, and Otis informed me that he could get me 20 adding machines and 20 typewriters immediately because he had the key to an office supply store. Q.

Sergeant Arkenau, when you say Otis, to whom are you referring? A. Otis Hensley. Q. After your discussion about the adding machines and typewriters, do you recall any further discussions you had? A. Edwin and Otis advised me they had these twelve teams of burglars working for them, and anything I needed they could get. All I had to do was really place an order, and they would pick it up for me. Edwin then produced a sheet of paper from a black notebook which had several lists of stereo components on it.

I examined it and looked at it and wanted to know how much they were, and Edwin then handed it to Otis, and Otis looked at it and agreed they would have to look at this merchandise to be able to give me the exact price. I then requested if I could keep this or that they make a copy of it for me. Edwin started to make a copy of the sheet of paper he handed to me. Q. Would the clerk please hand the witness Government’s Exhibit 22? (Government’s Exhibit 22 handed to the witness.) Sergeant Arkenau, you have now been handed Government’s Exhibit 22, and I will ask you what that is. A.

This is the exhibit that Edwin Adams copied for me on 8-24-76 in his store, and it is marked with my badge number. Q. After this discussion, what, if anything, did you do? A. Edwin started to write the note. I inquired if I could look at the items that Otis had offered for sale. Both myself and Otis Hensley departed the store and went out to his automobile where he opened the trunk of the car up. I looked at the material inside and offered him $250 for everything that was in the trunk. These were the adding machines, the television and cameras, and so forth, in the trunk.

Otis shut the trunk and said he had more than that invested in it. So, we left the car and went back to the store. We went in the store and Edwin was still seated at the desk copying this receipt. Q. The receipt that you identified? A. That’s correct. Once inside the store, I noticed that the phone kept constantly ringing, and after once Edwin got off the phone, I asked him if any more heroin was due in shortly because I would probably be needing some more, but I wanted to get a better price on it.

I presented the situation that my mother was gravely ill in Florida, and I had to help my dad with the finances of paying for the doctor bills, and I wanted a better cut on the price of heroin. Edwin explained to me that the people in Cincinnati are complaining they want more money for it, and now I want to buy it for less money, and he would have to see what he could do for me. Otis then offered the items in the car for $350 if I would take everything as it was. I agreed to the $350 price. Myself and Otis left the store, went out and loaded the items from his car into my car.

I handed Otis $360 and went back in the store where Otis handed the money to Edwin. Edwin handed Otis back $10 who in turn gave me the $10 change. At a point later in the trial, a photostatic copy of the list of items referred to in the foregoing testimony was introduced. That list contained 12 items of stereo equipment.

After this six-week trial, the jury found the following concerning Edwin’s Jewelry of Franklin, Ohio: We, the Jury herein, unanimously find that the defendant EDWIN ARTHUR ADAMS has been found guilty of Count 1 or Count 2 of the indictment; that he acquired or maintained an interest in Edwin’s Jewelry, 426 South Main Street, Franklin, Ohio, between May 6, 1976, and July 6, 1977, and that he carried on the business of an illegal enterprise through such business between the foregoing dates. Special Verdict Form A, Docket Edwin’s Jewelry, CR 1 77-73, Document No. 31.

The District Judge subsequently impounded the assets of Edwin’s Jewelry in the following order: Pursuant to the Jury’s verdict of forfeiture of Edwin’s Jewelry Store, and based upon the Affidavit of Special Agent Grant E. Beise of the F.B.I. that Edwin Arthur Adams moved the assets of Edwin’s Jewelry Store to Lanecrest Jewelry, 48 Millard Drive, Franklin, Ohio, IT IS HEREBY ORDERED that the F.B.I. padlock the premises of Lanecrest Jewelry, 48 Millard Drive, Franklin, Ohio, until such time as an inventory of the assets of said premises can be made and furnished to the Court. Order of Nov. 1, 1977, Docket No.

CR 1 77-73-5, Document No. 30. Another “ostensibly legitimate” business was also deeply involved in this criminal conspiracy. It was Spencer’s Jewelry of Middletown, Ohio, of which Herschel Weintrub was the proprietor. As we have previously noted, Weintrub was not a part of this trial, since he pled guilty, but this record is replete with evidence about his role.

The record warrants the conclusion that he and Carl Sutton were leading figures in this criminal conspiracy, that Sutton (aided by Viola Holmes) was the contact with the Cleveland suppliers Elkins and Carter, that Weintrub supplied financing for drug purchases to Sutton, and that Sutton and Adams (and sometimes Weintrub) in turn sold smaller quantities to appellants Hensley, Harris, Craven and Rankin, each of whom headed a street distribution operation. Appellant Hensley’s specialty was stolen goods, much of which he distributed through Adams and Edwin’s Jewelry.

Weintrub managed Spencer’s Jewelry and transacted the business of this illegal conspiracy at the store. This is shown in this record both by direct evidence of law enforcement agents who penetrated this ring undercover and by massive evidence furnished by search warrant-authorized wiretap transcripts to have been continually involved in the purchasing of illegal drugs (through Sutton) and the sale of said drugs to Adams and other defendants. He was also involved with Adams in the acquisition and sale of stolen goods.

He is also shown to have initiated a scheme with Hensley whereby Hensley and he defrauded a legitimate business, Nationwide Insurance Co., of $7,500. Weintrub’s interest lay in the fact that Hensley was in debt to him (Weintrub) for heroin to the tune of $525. Weintrub supplied Hensley with fraudulent jewelry sales slips from Spencer’s Jewelry to help him prove his “losses” in his fraudulent claims against his lawful insurer, Nationwide Insurance Co.

The proofs in this trial allowed the jury to find that this was a large-scale criminal enterprise operated by these nine appellants (plus guilty pleader Weintrub) and many other relatively minor figures (23 of whom have now pled guilty). Those proofs also warrant this court in concluding that the enterprise involved and affected interstate (and international commerce in its heroin aspect), that it employed at least two ostensibly legitimate businesses (i. e.

Edwin’s Jewelry of Franklin, and Spencer’s Jewelry of Middletown) as both fronts and bases of operation, and that it had adverse economic impact upon two other legitimate business enterprises, Miller’s Jewelry of Huron, South Dakota, and upon Nationwide Insurance Co. This particular “enterprise” prosecuted under the Racketeer Influenced and Corrupt Organizations Act is certainly not shown to be nationwide in scope or capable of dominating the area in which it was operating, as some evidence presented to Congress showed was true concerning other major organized crime operations.

It had, however, achieved a massive street distribution of heroin affecting many young people in at least two states, and it had shown capability for stimulation of interstate traffic in stolen household goods, jewelry and guns. On these facts we cannot hold that this “enterprise” was beyond the contemplation of Congress when it passed Title IX of the Organized Crime Control Act of 1970. The point of

Section I.(D.) of this opinion is not to suggest that the “enterprise” charged and proved in this case was other than that set forth in the indictment.

Appellants were charged with conspiring: To knowingly conduct and participate directly and indirectly in the conduct of the affairs of an enterprise which was engaged in, and the activities of which affected interstate commerce, said enterprise being an unlawful business enterprise engaged in distribution of controlled substances, interstate transportation of stolen property, receipt of stolen property transported in interstate commerce, and mail fraud, in the Southern District of Ohio and elsewhere.

The enterprise thus charged and proved to the satisfaction of the jury and this court was a thoroughly illegal organization. In this

section we have, however, pointed out how this ease illustrates the appropriateness of Congressional concern about organized crime’s infiltration of or impact on legitimate (or “ostensibly legitimate”) business as that concern is exemplified in the legislative history of the Organized Crime Control Act of 1970. Assuming that a purpose of protecting legitimate business from the depredations of organized crime may be found in Title IX, this prosecution serves effectively to vindicate that purpose.

This record clearly shows that Miller’s Jewelry of Huron, South Dakota, and Nationwide Insurance Co. of Columbus, Ohio, were, as charged in the indictment, victims of this “unlawful business enterprise.” In addition, Edwin’s Jewelry of Franklin, Ohio, and Spencer’s Jewelry of Middletown, Ohio, were clearly shown (as charged in the indictment) to have been infiltrated and used as a front for the illegal purposes of this unlawful enterprise.

Yet a fifth “ostensibly legitimate” business, Carter Exterminating Co. of Cleveland, Ohio, is shown to be involved with this unlawful enterprise, but to a less well-defined degree. The basic

interpretation of Title IX of the Organized Crime Control Act of 1970 and its employment of the word “enterprise” which this opinion sets forth has now been endorsed by a large majority of the United States Courts of Appeals which have thus far considered the issue. E. g., United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980); United States v. Aleman, 609 F.2d 298 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Rone, 598 F.2d 564 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v.

Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); United States v. Elliot, 571 F.2d 880 (5th Cir.), cert. denied sub nom. Delph v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977). Contra, United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980); United States v. Turkette, 632 F.2d 896 (1st Cir. 1980, as amended Sept. 25, 1980).

While this case has been pending before the en banc court, panels in two circuits have released opinions (cited immediately above) following the general approach which was adopted by Judge Merritt’s majority panel opinion in this court. We believe what has been said above concerning the legal aspects of this case affords sufficient answer to these two opinions. They, like the dissent herein, represent a doubtless conscientious view on the part of the judges concerned that Congressional adoption of Title IX of the Organized Crime Control Act of 1970 was inadvisable.

Yet none of the opinions deny that the government’s prosecution of an illegal enterprise is squarely authorized by the statute, and none of the opinions deny that the Congress had constitutional authority to adopt it. We reiterate that the Congress of the United States considered the threat to “domestic tranquility” posed by organized crime for two decades before adopting what the Supreme Court has described as follows: “The Act is a carefully crafted piece of legislation.” Iannelli v. United States, 420 U.S. 770, 789, 95 S.Ct. 1284, 1295, 43 L.Ed.2d 616 (1975).

The Congressional Statement of Findings and Purpose of the Organized Crime Control Act of 1970 strongly supports the conclusions reached by the majority of these courts and by this opinion:

Section 1 of Pub.L. 91 — 452 provided in part that: “The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption; (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens; and (5) organized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal and other sanctions or remedies to bear on the unlawful activities of those engaged in organized crime and because the sanctions and remedies available to the Government are unnecessarily limited in scope and impact. “It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” 18 U.S.C. § 1961 et seq. (1976) (emphasis added).

II.

THE INDICTMENT AND THE “ENTERPRISE” PROOFS The preceding sections of this opinion were written following an en banc hearing at which the sole issue argued by attorneys for the appellants was their insistence that the panel opinion which had been set aside by en banc vote should be adopted by the en banc court for the reason that Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. § 1961 et seq. (1976), should be interpreted as requiring charge and proof of an “ostensibly legitimate enterprise.” Judge Merritt, who wrote the majority panel opinion which had taken that position in reversing the District Court verdicts in this case, has now in his dissent relegated the statutory

interpretation issue to last rather than first place. The main emphasis of the dissent appears to us to be the following: “There is no proof whatever that six of the defendants— Elkins, Carter, Sutton, Holmes, Rankin, and Craven — had knowledge of the stolen merchandise, burglary, fencing and mail fraud activities.

There is not a word or a line in the record from which it could be inferred that these six defendants agreed, intended to conduct, or participated in an enterprise engaged in burglary, fencing and mail fraud.” These two sentences illustrate a misunderstanding of the applicable law as well as a lack of adequate acquaintance with this record.

The Supreme Court has never held that it is a requirement of a valid conviction for conspiracy, that every conspirator must have “agreed, intended to conduct or participated” in every crime committed by other co-conspirators in the event the crime was within the scope of the conspiracy which he was proved to have joined. Squarely in point concerning the criminal enterprise in this case is the statement in United States v. Elliott, 571 F.2d 880, 902-03 (5th Cir.), cert. denied sub nom. Delph v.

United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978) (footnote omitted): [T]he object of a RICO conspiracy is to violate a substantive RICO provision— here, to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity — and not merely to commit each of the predicate crimes necessary to demonstrate a pattern of racketeering activity.

The gravamen of the conspiracy charge in this case is not that each defendant agreed to commit arson, to steal goods from interstate commerce, to obstruct justice, and to sell narcotics; rather, it is that each agreed to participate, directly and indirectly, in the affairs of the enterprise by committing two or more predicate crimes. Under the statute, it is irrelevant that each defendant participated in the enterprise’s affairs through different, even unrelated crimes, so long as we may reasonably infer that each crime was intended to further the enterprise’s affairs.

To find a single conspiracy, we still must look for agreement on an overall objective. What Congress did was to define that objective through the substantive provisions of the Act. The proofs in this case were such as to allow the jury to find beyond reasonable doubt that each of these defendants violated the critical

section of Title IX which declares: It shall be 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 or collection of unlawful debt. 18 U.S.C. § 1962(c) (1976).

This 6,250 page record demonstrates that the jury could have found on competent evidence that all of the nine defendants were engaged in, employed by, or associated with the criminal enterprise described in this indictment, and that they conducted or participated directly or indirectly in the conduct of such enterprise’s affairs through a pattern of racketeering activity. There is no question that central to this enterprise’s operation was a conspiracy to sell heroin. Every one of the nine persons concerned was engaged in important activities in the conduct of this illegal business.

We emphasize that we do not deal here with allegations of the possession of narcotics for use by any defendant. These nine were not addicts. They were engaged in a wholesale heroin operation throughout southern Ohio and northern Kentucky. Each of the nine defendants was not only convicted on the charge of conducting the illegal Title IX enterprise and conspiracy to do so, but were individually convicted on three or more substantive felony counts of drug sale related offenses. As is true in any enterprise, some of the conspirators were at the very center of the enterprise.

They were Herschel Weintrub, Carl Sutton, and Edwin A. Adams. Weintrub and Adams operated the heroin conspiracy from their respective jewelry stores (previously described above) in close and continual partnership with Carl Sutton. Adams and Weintrub also used their jewelry stores for fencing stolen jewelry, stolen firearms, stolen household goods, and the commission of mail fraud. The evidence shows and the jury could have found that they used the proceeds of these ancillary crimes to finance further purchases of heroin.

This was in fact an integrated “enterprise.” As noted earlier, Weintrub, originally a defendant in this case, pleaded guilty before trial and has been sentenced. The record shows conclusively that he was the financier for the enterprise and probably its brains. Carl Sutton was the most important contact with Carter and Elkins, who from Cleveland supplied the drugs for this ring. But the evidence in .this record is such as to allow the jury to find that he also participated in the fencing activities of Adams and Weintrub. The dissent mistakes the fundamental thrust of the law of conspiracy and criminal enterprise.

It even more badly mistakes what this record discloses about this conspiracy and this criminal “enterprise.” Scholarly debate has not ceased concerning whether or not Congress should make conspiracy to commit unlawful acts a crime separate from the substantive offense. The law pertaining to this.issue has, however, been settled at least since 1945, when the Supreme Court decided Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In that case, with only one partial dissent, the late Justice William 0.

Douglas spelled out in detail the law pertaining to the proofs necessary to establish a criminal conspiracy and the relationship between conspiracy and substantive crimes. What follows is, we believe, equally applicable to the illegal “enterprise” charged and proved in this case: It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v.

United States, 159 U.S. 590, 594-595 [16 S.Ct. 125, 126, 40 L.Ed. 269], A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144 [33 S.Ct. 226, 228, 57 L.Ed. 450]. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. McClaughry, 183 U.S. 365, 395 [22 S.Ct. 181, 193, 46 L.Ed. 236], It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342 [31 S.Ct. 421, 422, 55 L.Ed. 489]. Cf. Freeman v. United States, 146 F.2d 978 (6th Cir.).

A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253 [60 S.Ct. 811, 858, 84 L.Ed. 1129]. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88 [, 35 S.Ct. 682, 684, 59 L.Ed. 1211]: “For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime.

It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.” And see Sneed v. United States, 298 F. 911, 912-913 (5th Cir.); Banghart v. United States, 148 F.2d 521 (4th Cir.). Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v.

United States, supra, 298 F. p. 913, “If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.” The agreement to do an unlawful act is even then distinct from the doing of the act. It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained, although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers.

The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it. Daniel relies on United States v. Sall, supra [116 F.2d 745 (3rd Cir. 1940)]. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy.

The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary. We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369 [32 S.Ct. 793, 803, 56 L.Ed. 1114].

As stated in that case, “Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence.” Id., p. 369 [32 S.Ct. at 803].

And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that “an overt act of one partner may be the act of all without any new agreement specifically directed to that act.” United States v. Kissel, 218 U.S. 601, 608 [31 S.Ct. 124, 126, 54 L.Ed. 1168], Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658 [16 S.Ct. 1127, 1137, 41 L.Ed. 289], Pinkerton v. United States, supra at 643-47, 66 S.Ct. at 1182-1184.

Much more recently, the Supreme Court has cited the Pinkerton case with approval in United States v. Iannelli, supra. There Justice Powell said for the Court: Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. See, e. g., United States v. Feola, ante, p. 671; Pinkerton v. United States, 328 U.S. 640, 644 [66 S.Ct. 1180, 1182, 90 L.Ed. 1489] (1946); Braverman v. United States, 317 U.S. 49, 53, [63 S.Ct. 99, 101, 87 L.Ed. 23] (1942).

Unlike some crimes that arise in a single transaction, see Heflin v. United States, 358 U.S. 415 [79 S.Ct. 451, 3 L.Ed.2d 407] (1959); Prince v. United States, 352 U.S. 322 [77 S.Ct. 403, 1 L.Ed.2d 370] (1957), the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act. Pinkerton v. United States, supra, at 643, [66 S.Ct. at 1181]. Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do

an act and for the subsequent accomplishment of that end. Feola, supra; Callanan v. United States, 364 U.S. 587 [81 S.Ct. 321, 5 L.Ed.2d 312] (1961); Pinkerton, supra; Carter v. McClaughry, 183 U.S. 365 [22 S.Ct. 181, 46 L.Ed. 236] (1902). Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose. Clune v. United States, 159 U.S. 590 [16 S.Ct. 125, 40 L.Ed. 269] (1895). The consistent rationale of this long line of decisions rests on the very nature of the crime of conspiracy.

This Court repeatedly has recognized that a conspiracy poses distinct dangers quite apart from those of the substantive offense. “This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. .Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.

Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Callanan v. United States, supra, at 593-594, 81 S.Ct. at 325. Ianneili v.

United States, supra at 777-78, 95 S.Ct. at 1289 (footnotes omitted). As we read it, the most important legal argument advanced by the dissent is stated in these words: In Kotteakos v. United States, 328 U.S. 750, [66 S.Ct. 1239, 90 L.Ed. 1557] (1946), the Supreme Court had made the same basic point. It reversed convictions because the evidence showed multiple conspiracies rather than the one alleged in the indictment.

In the Kotteakos case, Justice Rutledge phrased the question as follows: The only question is whether petitioners have suffered substantial prejudice from being convicted of a single general conspiracy by evidence which the Government admits proved not one conspiracy but some eight or more different ones of the same sort executed through a common key figure, Simon Brown. Kotteakos v. United States, 328 U.S. 750, 752, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

The opinion then described the nature of the evidence in the case: Simon Brown, who pleaded guilty, was the common and key figure in all of the transactions proven. He was president of the Brownie Lumber Company. Having had experience in obtaining loans under the National Housing Act, he undertook to act as broker in placing for other loans for modernization and renovation, charging a five per cent commission for his services. Brown knew, when he obtained the loans, that the proceeds were not to be used for the purposes stated in the applications. Id. at 753, 66 S.Ct. at 1242.

The opinion then recited evidence of a lawyer who fraudulently procured a loan to finance opening his law office by stating the purpose of the loan was that of modernizing his father’s house. No facts relating the lawyer to any of the other “conspirators” except Brown were recited. The facts in Kotteakos were further stated as follows: The evidence against the other defendants whose cases were submitted to the jury was similar in character. They too had transacted business with Brown relating to National Housing Act loans.

But no connection was shown between them and petitioners, other than that Brown had been the instrument in each instance for obtaining the loans. In many cases the other defendants did not have any relationship with one another, other than Brown’s connection with each transaction. As the Circuit Court of Appeals said, there were “at least eight, and perhaps more, separate and independent groups, none of which had any connection with any other, though all dealt independently with Brown as their agent.” 151 F.2d at 172.

As the Government puts it, the pattern was “that of separate spokes meeting in a common center,” though, we may add, without the rim of the wheel to enclose the spokes. Id. at 754-55, 66 S.Ct. at 1242 (footnote omitted; emphasis added). We both accept and agree with the principles of the Kotteakos case.

For one man to agree to and execute housing fraud upon the United States government as the agent of eight separate and unrelated individuals in eight separate transactions does not constitute a single conspiracy involving all— nor would it, without more facts, constitute participation in a Title IX “enterprise.” As the Supreme Court said: We do not think that either Congress, when it enacted § 269, or this Court, when deciding the Berger case, intended to authorize the Government to string together, for common trial, eight or more separate and distinct crimes, conspiracies related in kind though they might be, when the only nexus among them lies in the fact that one man participated in all.

Id. at 773, 66 S.Ct. at 1252. The differences between Kotteakos and our present case are very great. First, as we have pointed out above, the primary conspiracy was one to engage in the sale of narcotics, principally heroin. All nine of the defendants were proven to have engaged in felonies related to the possession of heroin for distribution, or the sale of heroin, or the use of the telephone to facilitate sale of heroin, or to sell it. In fact, all nine of these appellants were convicted on competent evidence on three or more substantive offenses of the variety just described.

Second, we call attention again to the testimony of Agent Owens and Sergeant Arkenau set forth on pages 17-23 of this opinion. Among other things, as will be recalled, Arkenau stated: Edwin related to me the entire setup of how the operation was started out and how it was founded. Edwin related that the main individual who started the organization was an individual they called J. P.', the initials of J. P., and he was the head of the organization several years ago.

He also then started to tell me that the organization was split up among three of J.P.’s trusted friends, and one of these three individuals Edwin Adams and Herschel Weintrub had met, and this individual they mention by the first name of Carl, and Carl did not have the money to back the operation, so they went to Herschel and Edwin to finance the operation, and Carl would furnish the drugs. During this time, Edwin said they buy their heroin a kilo at a time for approximately $20,000 a kilo, and it would be in the vicinity of 20 percent pure by the time they got it.

After describing how he paid Edwin Adams $850, “750 for the heroin and another hundred for the gun,” Arkenau subsequently continued: After I purchased the gun, we continued to talk. Edwin was telling me about how easy it was to be a fence or a dealer of stolen merchandise. Since he was in the jewelry-type business, he could purchase items and melt them down and remake them since he had a certain type of manufacturer’s license.

I told him I didn’t know a whole lot about the jewelry business, whether it was a good diamond or bad diamond, and so forth, and he explained that it was real easy to be a jewelry fence in the legitimate business of a jewelry store. On May 11 Agent Owens (in his undercover role) was told by Adams that his heroin suppliers were “Carl” and “Herschel.” Carl Sutton and Herschel Weintrub and appellant Otis Hensley were repeatedly identified and photographed at Edwin’s Jewelry.

Hensley, whose stolen goods were frequently sold by Adams through use of Edwin’s Jewelry, told Agent Arkenau that he had 12 burglary rings working for him. Third. The continual association of Weintrub, Adams and Sutton as the executive group of this enterprise is portrayed in dozens of pages of this lengthy transcript,_ but perhaps most vividly in the pictures of meetings between these three on the night of May 6, 1976, and (with Hensley) on May 17: EXHIBIT 1 H. Weintrub & Carl Sutton in front of Edwin s Jewelry Store. Taken May 6,1976, 8:50 p.m. by C. Barry Pickett. EXHIBIT 2 Adams, Sutton and H.

Weintrub leaving Edwin’s Jewelry-Store. Taken May 6, 1976, 10:15 p.m. — Pickett testimony. Even more explicit of the relationship between Weintrub, Adams and Sutton are pictures taken of the three of them both arriving and leaving on the night of May 17, 1976. It will be noted from the pictures below that Weintrub entered Adams’ store with two small “gold-colored boxes” and subsequently Sutton departed carrying those same boxes: EXHIBIT 8 Carl Sutton entering Edwin’s Jewelry Store (empty handed). Taken May 17, 6:18 p.m. — Pickett testimony. EXHIBIT 5 H. Weintrub walking to Edwin’s Jewelry Store.

Taken May 17, 6:37 p.m. — Pickett testimony. EXHIBIT 6 H. Weintrub entering Edwin’s Jewelry with gold-colored boxes under his arm — being let in by Otis Hensley. Taken May 17, 1976, approx. 6:37 p.m. — Pickett testimony. Concerning this sequence of pictures, Agent Pickett testified: Q. After Mr. Hensley checked the door, what, if anything, did you observe subsequent to that time? A. After that, I observed Herschel Weintrub arrive at Edwin’s Jewelry Store, and he was carrying two gold-colored small boxes under his arm.

EXHIBIT 7 Carl Sutton departing Edwin’s Jewelry Store carrying the two gold-colored boxes Weintrub carried on entering the store. Taken May 17, 1976, 7:28 p.m. Agent Pickett testified concerning this exhibit: Q. Can you identify Government’s Exhibit 7, please? A. Yes, sir. That is a picture of Mr. Sutton as he is leaving Edwin’s Jewelry Store with the two gold-colored boxes in his left hand. Fourth. The principal conspirators treated all of their illegal activities as part of one illegal enterprise.

Adams offered to and did sell both heroin and stolen goods to both Agent Owens and Sergeant Arkenau while both were acting undercover. The judge and the jury had a right to infer from their evidence that this was a regular pattern which commingled both the stolen goods and heroin proceeds and employed both in financing the principal business of heroin purchase and sale. This pattern was repeatedly confirmed in the conversations between the principal conspirators and their sales agents such as Hensley and Harris.

During the government’s case a transcript of a phone call between Herschel Weintrub and Sam Harris was introduced. Harris told Weintrub of the arrest of someone referred to as Tennessee and indicated that he (Harris) was lying low. The conversation continued, as set out below, to discuss his debt to Weintrub for $440 for rings, winding up with an interesting prophecy: SH I ain’t even going to worry about it, I was, I went and seen my lawyer ... HW Yeah. SH you know, ah ... HW Uh-huh. SH went to see him the day before the elections . .. HW Um-hum.

SH and he told me, if, you know, if it’s gonna happen, it’s gonna happen, not even to worry about it ... HW Yeah. SH and not to say nothing to anybody, don’t talk over no phones to anybody,, you know, and, ah .. . HW Urn-hum. SH and not to discuss anything .,. HW Yeah, well listen . . . SH if they come and get me, just, go ahead, and, ah, and, ah, call him, and not to say nothing, sign nothing, or do nothing ... HW Do nothing. SH just tell em your name, if they want fingerprints, you’ll let em ... HW Name, face and serial number. SH Yeah, that’s what he said ... HW Yeah.

SH the only thing you sign is the fingerprint card HW Yeah. SH and he said that’s it ... HW Yeah. SH and he said call me right now. HW Yeah, OK. SH So, I don’t know, I never, ah, heard nothing or anything . .. HW Yeah. SH you know, I’m just staying home. HW Well, that’s good, stay home, collect unemployment or something. SH That’s what I’m gonna do, I’m, just, I don’t know if I can collect any fuckin unemployment, but I’m staying home. HW Yeah. SH That other stuff, though, you know, ah, on that ring, that money, what’d I owe you, four forty yet? HW Yeah.

SH I’ll, I’ll have that together for ya, because, ah, I took them rings, and, ah, I’m gonna give em to, you know, another guy. HW Um-hum. SH And see if he can peddle em to somebody so I don’t have to get ... HW Yeah, get rid of em all at once. SH Right. HW OK. SH Let it go at that . . . HW All right. SH get out of debt, and see what happens. HW Yeah, well, let me know what goes, I was just calling to kibitz (phonetic). SH Nah, I think, ah, see, ah, you were real, real fortunate, you know, not having any dealings with this bastard ... HW Yeah. SH In any way, shape or form, I don’t know if I have or not.

HW I don’t think you have. I hope not. SH I do, too, but ... HW Yeah. SH you know, I’m gonna, if I do, I’m going to fight mine right to the end of it. HW Oh, hell yeah. SH Fuck with it, I’ll stay around 3 or 4 years on appeal. (Emphasis added.) Subsequently, Harris testified on his own behalf at the trial of this case and was asked about the conversation just quoted: Q. You also stated that you still owed on a ring $440, and that you would have it together. What did you mean by that sentence? A.

It could have meant heroin or it could have meant jewelry because I did sell some jewelry for him, and I just don’t know which it meant because we had a way of everything getting jammed into one thing. Like if he would give me some watches or jewelry or something to hustle, sell, he might just add it in with what was the balance on the dope transaction. I don’t really recall which way it was. (Emphasis added.) The District Judge doubtless considered the quoted government evidence on the motion to dismiss the indictment.

The jury had both portions of evidence quoted from the transcript before it on the issue of proof beyond reasonable doubt. Illustrative also of how much integration there was in the various subsidiary aspects of this enterprise is Government Exhibit # 350, a red bound ledger book seized under search warrant in appellant Hensley’s house. The ledger obviously is a price list on stolen items garnered by Hensley’s 12 burglary teams. On the first few pages of the ledger there are 12 names and telephone numbers.

Although one is identified only by a nickname and several are identified by first names only, or last names only, or in one instance by initials, there is a strong inference that Hensley thought each of these was a person whom he was likely to call in relation to disposition of the stolen goods. Three of the defendants in this case can easily be identified: “Carl,” “Hershell [sic],” and “T. Hill,” another co-conspirator in this case as to whom trial was severed and who now has been found guilty and sentenced. In sum total the individual items number 385 and cover 33 pages of the ledger.

They include many pieces of jewelry, many stolen firearms, a significant number of pieces of clothing, some building materials, a complete coin collection, television sets, microwave ovens and miscellaneous household furnishing. Beside various of these items are names, some with notations like “Otis kept,” apparently applicable to one Quasar 19 inch with the notation “brought back, no good.” The total number of individual names, many of them appearing numerous times, is 24.

The point we make by reference to this exhibit is that 1) the fencing aspect of the enterprise — although clearly subsidiary to the heroin distribution scheme — was substantial; 2) was operated in connection with all three of the executive group of the enterprise (Weintrub, Adams and Sutton), and 3) involved a substantial number of operatives other than Hensley. Viola Holmes not only operated as a drug courier for Sutton in Cincinnati and the Cleveland drug source maintained by appellants Elkins and Carter, she also, in effect, ran a subheadquarters for the WeintrubAdams-Sutton executive group at her home.

Prince Albert Rankin frequently talked with Carl Sutton on Viola Holmes’ phone and Herschel Weintrub used it to talk with Charles Craven, usually on calls relating to the purchase and sale of heroin. Federal agents also observed Rankin and Sutton on a visit to the Holmes house on November 14, 1976: Q. Mr. Stuart, calling your attention to November 14, 1976, did you have occasion to conduct a physical surveillance that day? A. Yes, sir, I did. Q. Where was your surveillance located? A. In the vicinity of 6753 Bellkenton Avenue, Silverton. Q. And around 5:00 o’clock in the evening, what if anything did you see? A.

Sir, at approximately 5:07 P.M., I observed a black Cadillac Eldorado pull up in front of the residence at Bellkenton, honk the horn a couple times, and then the vehicle continued on a short way and pulled into the driveway of Viola Holmes’ residence. I then observed a male Negro who I later was able to identify as Prince Albert Rankin get out of the Cadillac and walk up to the porch of the residence. He was there and then almost immediately turned around and walked back toward his car. Then I heard him say, “Do you want me to pull in the back, Carl?” I didn’t hear any response.

Rankin got into the Cadillac and pulled the car back behind the residence in the driveway. The male Negro I know now as Prince Albert Rankin and a female who I don’t know got out and went in the rear of the residence. Q. Were you able to see what occurred inside the residence? A. No, sir, I was not. Q. Did you observe the Cadillac leave at any time that day? A. Yes, sir. Later in the evening the vehicle left and I didn’t see it. I moved my surveillance position at about 5:55 P.M.

It took me about three or four minutes to get from the one location to the second location, and when I got to the second location, the Cadillac which had been parked in the driveway, Rankin’s Cadillac, was gone. I did not actually see him pull out. Q. Did you ever see it come back that evening? A. Yes, sir. At approximately 6:35 P.M., I observed this same Cadillac pull back into the driveway of the residence. He parked partway back in the driveway. Sutton

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