The PEOPLE of the State of New York,
JOHN A.K. BRADLEY, Justice.
The defendants are charged in three indictments with manipulating the over-the-counter stock market. Included among the defendants are three securities firms and fifteen individual defendants. The most significant count charges the crime of enterprise corruption in that from on or about September 18, 1987, through on or about February 14, 1990, the defendants having knowledge of the existence of a criminal enterprise and the nature of its activities, and being members of and associated with that criminal enterprise, intentionally conducted and participated in the affairs of the enterprise by participating in a pattern of criminal activity. Specifically, the defendants a group of ostensibly independent, competitive securities firms and individuals are charged with acting together as a single criminal enterprise secretly rigging trading in certain securities some of which were traded on NASDAQ and some were listed on the "pink sheets" (daily listings of over-the-counter stocks), fraudulently concealing collusive transactions, creating a false appearance that certain quotations in the NASDAQ system were honestly set, providing false financial information and other activities. The defendants are also charged with numerous counts of falsifying business records, grand larceny, conspiracy and other crimes.
[p. 778] The defendants have moved to dismiss the indictments on numerous grounds. The motion is denied in part, as follows: ...
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The defendants move to dismiss the enterprise corruption counts on three grounds: that New York's enterprise corruption statute is unconstitutionally vague, that the indictment here for enterprise corruption should be dismissed in the interest of justice as inconsistent with the intention of the Legislature, and that the indictment fails to allege a criminal enterprise as defined in Penal Law Section 460.10(3).
While the federal RICO statute has been criticized as perhaps being impermissibly vague, See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), and while Article 460 of the Penal Law was inspired by the RICO statute, 18 U.S.C. 1961 et seq., the experience of the federal courts with RICO was examined closely by the legislature, and Article 460 was designed to target certain criminal activities more precisely defined and with less sweep than RICO. Perhaps chief among the criticisms of RICO has been the elusive concept of "enterprise", as to which there is no requirement that the enterprise be a criminal one. See U.S. v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); U.S. [p. 784] v. Indelicato, 865 F.2d 1370 (2d Cir.1989) cert. den. Indelicato v. United States, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989); U.S. v. Stolfi, 889 F.2d 378 (2d Cir.1989).
The New York Organized Crime Control Act's Enterprise Corruption sections were designed to rectify some of these perceived deficiencies. Thus, the legislative findings accompanying the statute point out that the statute contains more rigorous definitions than other similar statutes, which limit the statute's applicability. Chief among these definitional restrictions is New York's requirement that a perpetrator act with intent to participate in or advance the affairs of a criminal enterprise. The statute defines "criminal enterprise" as a "group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents." Penal Law Section 460.10(3). The result of the statute is that there must be a criminal enterprise with a structure and purpose as set forth in the statute and the defendant must know of its existence and the nature of its activities. This Court is convinced that the statute passes Constitutional muster.
The defendants next attack the People's allegation that a criminal enterprise was formed and continued. In contrast to the defendant's argument, the Grand Jury was in fact presented with substantial evidence that otherwise discrete and independent securities professionals in fact acted together to control price and supply of certain securities on an ongoing basis. In particular, there was evidence that brokers entered quotes into the NASDAQ system at the direction of allegedly independent brokers, and that upon occasion, a broker would obtain approval from one of the other allegedly independent brokers before effectuating a trade. Moreover, the evidence presented, including the eavesdropping evidence, established the defendants' unlawful purpose to profit from their manipulative market tactics.
The indictment also described the criminal enterprise as having an ascertainable structure, with Alexander and Keith Minella, and John and George Kevorkian operating at the top of the structure in planning the objectives of the enterprise, and directing how the trading would occur to achieve the objectives. The indictment places Parsons Eng, Joseph Zaborowski, Keith Friedman, Joseph Elkind, and Don Delvecchio at the middle level of the enterprise, and certain other traders [p. 785] and brokers at the bottom level. Nothing prevents the defendants, of course, from challenging all or any part of this alleged structure at trial, but for purposes of indictment, the People have met their burden. Moreover, the allegation is not that the defendants coalesced to manipulate the market with respect to a single security, but rather that they continued to operate in the same manner with respect to several securities and, though not all defendants were involved in every deal, there was a continuing structure and purpose.
Here the Court concludes after a careful review of the indictment and the evidence presented to the Grand Jury that, unlike in People v. Moscatiello, 149 Misc.2d 752, 566 N.Y.S.2d 823 (Sup.Ct.1990), the People have properly charged an enterprise with an ascertainable structure distinct from a pattern of criminal conduct, including a system of authority beyond what is minimally necessary to effectuate individual substantive criminal offenses. See U.S. v. Bledsoe, 674 F.2d 647, 665 (8th Cir.1982). The People have shown more than a mere ad hoc association. Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241 (5th Cir.1988) cert. den. 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989). The Court also takes note of the ongoing business, social, familial, and corporate relationship among the defendants here, which was not present in Moscatiello.
The defendants also argue that the People have not charged an
enterprise which was continuing. Drawing an analogy from the federal
RICO statute, the requirement of continuity does not require that no members
leave or that new ones do not join, so long as the enterprise continues
with the same purpose and that the new members coming in fill roles performed
previously in the group. U.S. v. Bledsoe, 674 F.2d at 665.
Nor does the management structure need to be so rigid as to resemble the
formalistic corporate flow chart. Different individuals may fulfill
different management roles at different times, and delegation of decision
making is permitted. Bledsoe, Id. U.S. v. Lemm, 680 F.2d 1193 at
1199 (8th Cir.1982) cert. den. Lemm v. United States, 459 U.S. 1110, 103
S.Ct. 739, 74 L.Ed.2d 960 (1983). As the Court in U.S. v. Kragness,
830 F.2d 842, 856 (8th Cir.1987), held:
Continuity of structure exists where there is an organizational pattern or system of authority that provides a mechanism for directing the group's affairs on a continuing, rather than an ad hoc basis. Bledsoe, 674 F2d at 665; Lemm, 680 F2d at 1199; [U.S. v.] Riccobene, 709 F2d  at 222 [3rd Cir.1983]. The continuity-of-personnel element involves a closely related inquiry, in which "[t]he determinative factor is whether the associational ties of those [p. 786] charged with a RICO violation amount to an organizational pattern or system of authority." Lemm, 680 F2d at 1199, citing Bledsoe, 674 F2d at 665; see Riccobene, 709 F2d at 223. The continuity of these elements need not be absolute; the group's system of authority may be modified, old members may leave, and new members may join. Bledsoe; Lemm; Riccobene (cites omitted). That some changes in structure and personnel occur does not mean that there is no mechanism for continuing direction of group affairs; both the structure and the personnel of an enterprise may undergo alteration without loss of the enterprises's identity as an enterprise.
The indictment and presentation to the Grand Jury sufficiently charged a continuing enterprise to satisfy the statutory requirement.
Finally, the court rejects the suggestion that the Enterprise Corruption statute was not intended to cover "ordinary white collar crime", and that it was designed only for the "Mafia". While this Court has expressed its concern that simple criminal activity, whether white collar or otherwise, not be expanded into a complex enterprise crime, this Court believes the Legislature precisely intended to cover crimes such as this where it is alleged that a structure is established to engage in continuing pattern dominated criminal activity. While it may be designed to cover "organized crime", that is precisely what is charged here, notwithstanding the absence of La Cosa Nostra. See, Penal Law Section 460.00....
This motion is decided in accordance with this opinion.