...commentators have persuasively and exhaustively explained why ... RICO ... [is not limited to] organized crime....") (citing with approval Civil Action). Legitimate businesses "enjoy neither an inherent incapacity for criminal activity nor immunity from its consequences.". Sedima, 473 U.S. at 499. Finally, "the courts [are also] all but unanimous in their refusal to read RICO as prohibiting only the infiltration of legitimate organizations..." United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980) (emphasis added). See Turkette, 452 U.S. at 590 ("unpersuaded ...only the infiltration of legitimate business") (emphasis in original). RICO in 18 U.S.C. §1962(a)–(d) sets forth "standards" of "unlawful" conduct, which care enforced through "criminal" and "civil" sanctions. Section 1963 sets out the criminal remedies. Section 1964 sets out the civil remedies. Sedima, 473 U.S. at 489; Basic Concepts at 1021 n.71; Civil Action at 243, n.20. Section 1962 states what is "unlawful," not "criminal." As such, RICO is not, as some district courts believe, "primarily a criminal statute." In Re Action Industries Tender Offer, 572 F. Supp. 846, 849 (E.D. Va. 1983). Under 18 U.S.C. § 1961(3) "person" ("individual" or "entity") defines the class who may be sued civilly for violations of § 1962 under § 1964, but under I U.S.C. § 1 "whoever" ("individual," "corporate body," but not "governmental unit") defines the class who may be indicted for violations of § 1962 under § 1963. See generally Civil Action at 243 n.20. Accordingly, because the civil scope of RICO is broader than its criminal scope, RICO is not primarily criminal and punitive, but primarily civil and remedial. Sedima, 473 U.S. at 497-98 ("read broadly... to effectuate its remedial purposes"); Turkette, 452 U.S. at 593 (RICO is "both preventive and remedial"). RICO's civil 71 Thus, contrary to the lower court's statement (Amended Mem., p. 20), Civil RICO was hardly an "afterthought." See 115 Cong. Rec. 6993 (1969) (statement of Sen. Hruska) ("The criminal provisions are intended primarily as an adjunct to the civil (continued) remedies, based on a showing of the preponderance of the evidence, are available to the government or other parties.8/ Congress expressly directed that RICO "be liberally construed to effectuate its remedial purposes." 84 Stat. 941 (1970). Sedima, 473 U.S. at 497-99; Russello, 464 U.S. at 27 ("[T]his is the only substantive federal criminal statute that contains such a directive..."). The directive is a "mandate." Lou v. Belzberg, 834 F.2d 730, 737 (9th Cir. 1987) (quoting Sedima, 473 U.S. at 492 n.10), cert. denied, 108 S.Ct. 1302 (1988).2/ 8/ 9/ provisions, which I consider as the more important feature of the bill."); 116 Cong. United States v. Cappetto, 502 F.2d 1351, 1357 (7th Cir. 1974), cert. denied, 420 The liberal construction clause is not unique in state law. It had its origins in the [W]here [judges] were not ready boldly to declare [it] unconsti- These factors found expression in the abstract canons of statu- The effect was to put a primarily obstructive, if not destruc- W. Hurst, The Growth of American Law 186 (1950). Legislatures reacted. "[I]t became standard practice in drafting statutes to insert a preamble stating broadly the purpose of the act and to close with a provision declaring that the statute should be liberally construed." D. Wigdor, Roscoe Pound: Philosopher of Law 174 (1974). In fact, a majority of states have abolished the common law rule. The statutes are collected in Civil Action at 245 n.25. Strict construction is not of constitutional dimension. Tarrant v. Ponte, 751 F.2d 459, 466 (1st Cir. 1985). Accordingly, the language of the statute is to be read in the same fashion, whatever the character of the suit. Sedima, 473 U.S. at 489; cf. Northern Securities Co. v. United States, 193 U.S. 197, 401 (1904) (Holmes, J., dissenting) ("The words cannot be read one way in a suit which is to end in fine and imprisonment and another way in one which seeks an injunction."). Congress expressly found that the sanctions and remedies available under the law then current" were "unnecessarily limited in scope and impact." 84 Stat. 923 (1970). It sought in the 1970 Act to "establish [. . .] new penal prohibitions and [to] provide [...] enhanced sanctions and new remedies...." Id. "Congress was well aware that it was entering into a new domain ..." Turkette, 452 U.S. at 586. The issue was not whether the 1970 Act was to apply, but the possible preemption of other sanctions. Congress, however, expressly saved "provision[s] of Federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for" in RICO. 84 Stat. 947. "Congress enacted RICO in order to supplement, not supplant, the available remedies, since it thought those remedies offered too little protection for the victims." Haroco v. American Nat'l Bank and Trust Co. of Chicago, 747 F.2d 384, 392 (7th Cir. 1984), aff'd., 473 U.S. 606 (1985). Such overlap between statutes "is neither unusual nor unfortunate." S.E.C. v. National Securities, Inc., 393 U.S. 453, 468 (1969). Cumulative remedies further remedial purposes. Herman & McLean v. Huddleston, 459 U.S. 375, 386 (1983). 2. The Civil Enforcement Provision of RICO Was Designed to Encourage 18 U.S.C. § 1964(c) provides: Any person injured in his business or property by reason of a the damages sustained and the cost of the suit, including a The private enforcement provisions of RICO were modeled on, but are not identical to, the antitrust laws. S. Rep. No. 617, 91st Cong., 1st Sess. 81 (1969); H.R. Rep. No. 1549, 91st Cong., 2d Sess. 56-60 (1970). The antitrust laws have been aptly termed "the Magna Carta of free enterprise." United States v. Topco Associates, 405 U.S. 596, 610 (1972). The antitrust laws "are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms." Id. A private "treble-damages remedy [is needed]... precisely for the purpose of encouraging private challenges to antitrust violations." Reiter v. Sonotone Corp., 442 U.S. 330, 344 (1979) (emphasis in original). Such "private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws." Leh v. General Petroleum Corp., 382 U.S. 54, 59 (1965). Private suits "provide a significant supplement to the limited resources available to the Department of Justice" to enforce the antitrust statutes. Reiter, 442 U.S. at 344.10/ Like the antitrust laws, RICO creates "a private enforcement mechanism that... deter[s] violators and provide[s] ample compensation to the victims..." Blue Shield of Virginia v. McCready, 457 U.S. 465, 472 (1982). See Agency Holding Corp. v. Malley 10/ In fact, between 1960 and 1980, of the 22,585 civil and criminal cases brought under the antitrust provision by the government or private parties, 84% were instituted by private plaintiffs. U.S. Department of Justice Source Book of Criminal Justice Statistics 431 (1981). Professor (now Judge) Posner also argues on economic grounds forcefully for private enforcement of more than actual damages awards against all forms of deliberate antisocial conduct, particularly where the factor of concealment is present. R. Posner, Economic Analysis of Law 462 (private enforcement), 143, 272 (more than actual damage awards, for deliberate conduct) 235 (concealment) (2d ed. 1977). See generally Equitable Relief at 531 n.17 (history and rationale of treble damages). Duff & Associates, Inc., 483 U.S. 143, 151 (1987) ("private attorneys general [for] a serious national problem for which public prosecutorial resources are deemed inadequate"); Shearson/American Express, Inc. v. McMahon, 482 U.S. 200, 241 (1987) ("vigorous incentives for plaintiffs to pursue RICO claims"); Sedima, 473 U.S. at 493 ("private attorney general provisions... designed to fill prosecutive gaps") (citing Reiter v. Sonotone, 442 U.S. at 344).11/As such, RICO fits easily into a consistent pattern of federal legislation enacted as general reform over the past half century or more aimed at 12/ a specific target, but drafted without limiting it to the specific target. While the language of a statute must "ordinarily be regarded as conclusive," it can, of course, give way to a "clearly expressed legislative intention" to the contrary found in the statute's legislative history. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); United States v. Apfelbaum, 445 U.S. 115, 121 (1980) (same). The broad, remedial purposes of RICO and the importance of its private civil - 11/ RICO and the antitrust statutes are well integrated. "There are three possible kinds of force which a firm can resort to: violence (or threat of it), deception, or market power." C. Kaysen & D. Turner, Antitrust Policy 17 (1959). RICO focuses on the first two; antitrust focuses on the third. See also American C&L Co. v. United States, 257 U.S. 377, 414 (1921) (Brandeis, J., dissenting) ("Restraint may be exerted through force or fraud or agreement."). See generally Note, Treble Damages Under RICO: Characterization and Computation, 61 Notre Dame. Rev. 526, 533-34 (1986) ("(1) encourage private citizens to bring RICO actions, (2) deter future violators, and (3) compensate victims for all accumulative harm. These multiple and convergent purposes make the treble damage provision a powerful mechanism in the effort to vindicate the interests of those victimized by crime."). 12/ See, e.g., 18 U.S.C. § 1951 (extortion) held not limited to racketeering in United States v. Culbert, 435 U.S. 371, 373-74 (1978); 18 U.S.C. § 1952 (Travel Act) held not limited to organized crime bribery in Perrin v. United States, 444 U.S. 37, 46 (1979); 18 U.S.C. 1953 (lottery tickets) held not limited to organized crime in United States v. Fabrizio, 385 U.S. 263, 265-67 (1966); 18 U.S.C. § 2113(b) (bank robbery) held not limited to gangsters in Bell v. United States, 462 U.S. 356, 358-62 (1983); 18 U.S.C. § 2421 (1982) (white slave traffic) held not limited to commercia. prostitution in Caminetti v. United States, 242 U.S. 470, 485-90 (1917). generally Equitable Relief at 529 n.13 (other cases collected). See |