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UNITED STATES v. DEFRIES

December 7, 1995

UNITED STATES OF AMERICA,
v.
CLAYTON EUGENE DEFRIES, et al.



The opinion of the court was delivered by: JACKSON

 Defendants C. Eugene DeFries, Clyde Dodson, Claude Daulley, and Alexander Cullison were elected officers of a labor organization known as District No. 1-Pacific Coast District, Marine Engineers Beneficial Association ("PCD, MEBA"), and its successor by merger, District No. 1-Marine Engineers Beneficial Association/National Maritime Union ("MEBA/NMU"), hereinafter, simply, "the Union." The Union has historically represented the interests of licensed engineering officers on U.S.-flagged merchant vessels.

 In June of 1993 defendants were indicted and charged with racketeering and racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961-68 ("RICO"), and various other offenses also charged as racketeering acts, in connection with their conduct of Union affairs. In July, 1995, defendants were convicted by a jury on all counts. *fn1" The issue of RICO forfeiture has been submitted by consent to the Court.

 The government has moved, on the evidence of record, for an order of forfeiture of the aggregate amounts of the gross salaries paid to defendants since 1985 by the Union, plus the total amounts of the so-called "severance payments" disbursed to three of them in or about March of 1988. It does not seek forfeiture of the value of any fringe benefits they may have received, nor of the pensions to which they are entitled as members of the Union. *fn2"

 The Court finds, as did the jury, that the government has proved beyond a reasonable doubt that the defendants are guilty of violations of 18 U.S.C. § 1962(c) and (d). In such cases, 18 U.S.C. § 1963(a) provides, in relevant part:

 
(a) Whoever violates any provision of section 1962 ... shall forfeit to the United States ...
 
(1) any interest the person has acquired or maintained in violation of section 1962;
 
* * *
 
(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity ... in violation of section 1962.

 Once a § 1962 violation is established, as in this case, the "shall forfeit" language of § 1963(a) imposes a mandatory requirement of forfeiture, and the relationship between the violation and a defendant's property interests is determinative of the latter's amenability to forfeiture. United States v. Perholtz, 268 U.S. App. D.C. 347, 842 F.2d 343, 369 (D.C. Cir.), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42, 109 S. Ct. 65 (1988). The Court has no discretion to withhold forfeiture or adjust the amount; its function is merely to ascertain if the requisite nexus exists between a property interest sought to be forfeited and the substantive § 1962 RICO violations. Therefore, the principal issue at this stage of the case is whether the government can establish that the salaries and severance payments constitute interests "acquired or maintained" by a RICO violation under § 1963(a)(1), and/or are "proceeds which [the defendants] obtained, directly or indirectly, from racketeering activity" under § 1963(a)(3). *fn3"

 As a preliminary matter, the Court observes that the RICO forteiture provisions are to be liberally construed. Early on in United States v. Turkette, 452 U.S. 576, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981), and again in Russello v. United States, 464 U.S. 16, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1933), the Supreme Court has expressed its approbation of Congress' desire that the RICO forfeiture provisions be interpreted in a manner consistent with RICO's purposes, viz., "to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots." Id. at 26. *fn4" The goal of RICO forfeiture was "to remove the profit from organized crime by separating the racketeer from his dishonest gains." Id. at 28. The rule of lenity does not apply. Id. at 29.

 I.

 The government contends that the defendants "acquired" and then "maintained" their Union offices, for which they were paid their salaries, by the Union-wide elections of officers of 1984, 1987, and 1990. According to the evidence, and the jury so found, the elections were fraught with instances of ballot-tampering (by defendants and their agents); surrogate voting (by defendants, of the ballots of others, for themselves); ghost voting (by defendants, of replacement and blank ballots, for themselves); and voting under duress (by Union members fearful of voting for anyone other than defendants).

 Assuming that to be so, defendants respond, it is insufficient nevertheless to prove the necessary causal connection between such "racketeering activity" and the salaries they were paid, because it fails to prove a fact that should be deemed essential to a total forfeiture of their salaries, namely, that they would have been defeated for the offices for which they ran if there had been no election fraud. They point to the margins of their respective electoral victories, in comparison to the numbers of ballots the government was able to show at trial to have been actually voted corruptly, from which they argue that, were the Court to discard all tainted ballots (or even ...


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