their collaborative racketeering activities. In virtually all other reported forfeiture cases the racketeering proceeds were commingled, disbursed, invested, and/or spent by multiple defendants and related parties in untraceable and unallocable proportions, thus providing a rationale for joint and several liability.
For example, defendants say, in United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986), cert. denied, 482 U.S. 917, 96 L. Ed. 2d 679, 107 S. Ct. 3191 (1987), the four defendants who objected to their joint and several liability for illegal kickback payments on dental insurance contracts had each received indeterminate amounts over a period of five years through multiple conduit corporations in which they held varying interests. Although the government was able to calculate the aggregate amount of the kickbacks (a fixed percentage of monthly premiums paid), it was unable to determine how it had been allocated. The Eleventh Circuit explained that joint and several liability of more than a single defendant for the total amount of the racketeering proceeds, notwithstanding they were shared, was not only consistent with RICO's purposes but was imperative to the effectiveness of the remedy. Were the government required to prove each defendant's allotted share as the measure (and limit) of his forfeiture liability, "the offenders would simply have to mask the allocation of the proceeds to avoid forfeiting them altogether." 806 F.2d at 1508.
The government relies principally on a more recent case from the First Circuit. In determining that four defendants were jointly and severally liable to forfeiture of a total of more than $ 136 million in laundered drug-money receipts, while various co-conspirators were found liable for lesser fractions of the same sum, the First Circuit approved a "reasonably foreseeable" test employed by the district court. United States v. Hurley, 63 F.3d 1, 22 (1st Cir. 1995), affirming United States v. Saccoccia, 823 F. Supp. 994, 1004 (D.R.I. 1993). Joint and several liability or, in other words, vicarious forfeiture liability of one RICO conspirator for some or all of the proceeds generated or received by others, is essential to give assurance that leaders share liability for proceeds handled by their subordinates, but no defendant should be held liable for proceeds he could not reasonably have anticipated as likely to derive from their concerted efforts. 63 F.3d at 20-23.
Applying the teaching of those two leading cases to the instant case, it is clear that, even though the government has been able to show precisely how the Union's money has been divided between defendants over the years they held control of it, joint and several liability is an integral aspect of RICO forfeiture. Consequently each should be held jointly and severally liable for the forfeiture of that portion of the aggregate that he could reasonably foresee as accruing to either himself or his co-conspirators.
Defendants DeFries and Dodson, who from the earliest were influential insiders who set the policy, fixed levels of compensation, and drove the conspiracy, foresaw it all. Each shall therefore forfeit his own salary and severance payments, and shall stand secondarily liable, or as surety, for the recovery of assets forfeitable by his co-defendants.
Defendants Daulley and Cullison shall likewise forfeit their own salaries, and Daulley shall forfeit own his severance payment. Both shall also be jointly and severally liable for any deficiency in the recovery of salaries paid by the Union to their co-defendants. However, the defendants Daulley and Cullison shall have no vicarious forfeiture liability for the co-defendants' severance payments in any amount since neither had a hand in bestowing, or even became aware of them, until after the event.
For the foregoing reasons, it is, this 7th day of December, 1995,
ORDERED, that the motion of the government for RICO forfeitures of the aggregate salaries paid by the Union (including National MEBA) to defendants for the years 1985-1990, and the severance payments by the Union to defendants DeFries, Dodson, and Daulley in or about March, 1988, are granted, with separate orders of forfeiture to be entered for each defendant; and it is
FURTHER ORDERED, that the orders of forfeiture, and any execution thereon, are stayed pending proceedings on timely appeals taken therefrom; and it is
FURTHER ORDERED, that the Orders of July 20, 1995, to preserve the availability of the defendants' assets to satisfy the orders of forfeiture shall remain in effect during the pendency of any appeals.
Thomas Penfield Jackson
U.S. District Judge