APPENDIX 10.-BRIEF OF THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTS AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS IN THE CASE OF H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al. BRIEF OF THE AMERICAN INSTITUTE AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS LOUIS A. CRACO PHILIP A. LACOVARA HUGHES HUBBARD & REED Institute of Certified I. RICO'S "PATTERN" ELEMENT REQUIRES ALLEGATIONS AND PROOF THAT "RACK- ETEERING ACTIVITY" WAS TYPICAL OR A. The Plain Meaning Of “Pattern" Is That The Sample Of Actions Is "Typical" Or "Charac- B. RICO's Legislative History Also Supports Interpreting The "Pattern" Element To Re- quire A Showing That The "Racketeering Activity" Was Typical Or Characteristic Of The Conduct Of The Allegedly Corrupt Per- 1. Congress Intended to Protect Legitimate Businesses from Professional Criminals Without Attempting to Outlaw Directly 2. Congress Created and Then Tightened the "Pattern" Element as Part of the Effort to Arrive at a Functional Defini- tion of Professional or Habitual Criminal C. The Rule Of Lenity Also Supports The Inter- pretation Of "Pattern" To Require Allega- TABLE OF CONTENTS-Continued II. THE CONTEXT IN WHICH THE "PAT- TERN" ELEMENT ARISES VARIES WITH- IN RICO, AND ITS APPLICATION TO IDEN- TIFY CONDUCT THAT CHARACTERIZES HABITUAL CRIMINALITY MUST VARY DE- PENDING ON THE RICO SUBSECTION AT A. The "Relationship" Between The "Racket- eering Activity" And RICO's Proscribed B. The "Continuity" Of "Racketeering Activity" In Connection With RICO's Proscribed Con- duct ..... III. OTHER PROPOSED INTERPRETATIONS OF THE "PATTERN" ELEMENT OF RICO FAIL Cases: iii TABLE OF AUTHORITIES Barticheck v. Fidelity Union Bank/First Nat'l Blue Chip Stamps v. Manor Drug Stores, 421 U.S. Page 22 2,23 Dunn v. United States, 442 U.S. 100 (1979) ........... 16 21 Exeter Towers Assoc. v. Bowditch, 604 F. Supp. Gatoil (U.S.A.), Inc. v. Forest Hill State Bank, 822 8 Ghouth v. Conticommodity Services, Inc., 642 F. Huddleston v. United States, 415 U.S. 814 (1974).. Lipin Enterprises Inc. v. Lee, 803 F.2d 322 (7th 7 Morgan v. Bank of Waukegan, 804 F.2d 970 (7th 19 Papai v. Cremosnik, 635 F. Supp. 1402 (N.D. III. Richards v. United States, 369 U.S. 1 (1962) Roeder v. Alpha Indus., Inc., 814 F.2d 22 (1st Cir. 22 Russello v. United States, 464 U.S. 16 (1983) ... ..passim (1985) passim Sun Sav. & Loan Ass'n v. Dierdorff, 825 F.2d 187 21 Tellis v. United States Fidelity & Guar. Co., 826 F.2d 477 (7th Cir. 1987)..... 19 Thompson v. Wyoming Alaska, Inc., 652 F. Supp. 1222 (D. Utah 1987) 20 Torwest DBC, Inc. v. Dick, 628 F. Supp. 163 (D. 18 Torwest DBC, Inc. v. Dick, 810 F.2d 925 (10th Cir. 1987) 28 iv TABLE OF AUTHORITIES-Continued Page United States v. Anderson, 626 F.2d 1358 (8th Cir. 18 15 26 United States v. Cauble, 706 F.2d 1322 (5th Cir. United States v. Gambino, 566 F.2d 414 (2d Cir. 18, 27 27 27 27 United States v. Turkette, 452 U.S. 576 (1981)....8, 15, 17, 27 Statutes: Organized Crime Control Act of 1970, Pub. L. No. |