30 CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. Of Counsel: JAN S. AMUNDSON General Counsel QUENTIN RIEGEL Deputy General Counsel National Association of Manufacturers 1331 Pennsylvania Ave., N.W. STEPHEN M. SHAPIRO Counsel of Record ANDREW L. FREY KENNETH S. GELLER MARK I. LEVY DENNIS G. FRIEDMAN Mayer, Brown & Platt 190 South La Salle Street Counsel for the National Association of JULY 1988 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 TABLE OF CONTENTS 1. 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- Page 8 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 Page 22 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 2,23 Dunn v. United States, 442 U.S. 100 (1979). 16 21 Exeter Towers Assoc. v. Bowditch, 604 F. Supp. 22 Gatoil (U.S.A.), Inc. v. Forest Hill State Bank, 822 Ghouth v. Conticommodity Services, Inc., 642 F. 8 19 Huddleston v. United States, 415 U.S. 814 (1974).. 16 96 8 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. Ill. 20 Richards v. United States, 369 U.S. 1 (1962) .... 926 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. 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 |