author: BUA, District Judge.

text:
    Marion BECKLESS, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret HECKLER, Secretary of the United States Department of Health and Human Services, Defendant.
    No. 84 C 9335.
    United States District Court, N.D. Illinois, E.D.
    Dec. 3, 1985.

      John M. Bouman, Sherry Faulkner, Steven Saltzman, Legal Assistance Foundation of Chicago, Chicago, 111., for plaintiff.
    Anton R. Valukas, U.S. Atty. by Ann L. Wallace, Asst. U.S. Atty., Chicago, 111., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Plaintiff, Marion Beckless, moves this Court for an order certifying the above class pursuant to Fed.R.Civ.P. 23(a) and (b). For reasons stated below, the Court grants plaintiffs motion for certification.

I. FACTS

The named plaintiff, Marion Beckless, brings this action on her behalf, and on behalf of others similarly situated, to challenge SSI regulatory policies established by the U.S. Department of Health and Human Services. The Supplemental Security Income (SSI) program provides a minimum income for the poor and disabled and is established under 42 U.S.C. §§ 1381 et seq. The plaintiff seeks to certify the class pursuant to Fed.R.Civ.P. 23(a) and (b) and has filed an amended motion for class certification which defines the class as follows:

All Supplemental Security Income (SSI) applicants who have resided or are residing in Illinois or Wisconsin, whose applications are denied or initial benefits are reduced due to in-kind income determined under 20 C.F.R. §§ 416.1140 and .1141 (1984) (or predecessor regulations), regardless of whether such income can be used to meet needs for food, clothing or shelter; and all recipients of SSI who have resided or are residing in Illinois or Wisconsin whose benefits are being or have been reduced or terminated pursuant to the same policies, who have made a claim for continuing benefits by filing a request for reconsideration or otherwise.

II. DISCUSSION

Defendant argues that the class cannot be certified because putative class members have failed to meet the jurisdictional requirements of 42 U.S.C. § 405(g).

Section 405(g) provides:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.

To obtain a final decision two elements must be met. First, class members must meet the nonwaivable element of presenting a claim for benefits to the Secretary. Second, the party presenting the claim must exhaust all administrative remedies before seeking judicial review of the matter. This second requirement has been held to be waivable by either the Secretary or the court. Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1975); Weinberger v. Salfi, 422 U.S. 749, 764, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2023, 80 L.Ed.2d 622 (1984). Certain circumstances must exist for the court to waive the exhaustion requirement. A court may waive the requirement when the plaintiffs legal claims are wholly collateral to their claims for benefits and when prompt resolution is so necessary that deferring to an agency decision is inappropriate. Giacone v. Schweiker, 656 F.2d 1238, 1243 (7th Cir.1981); Eldridge, 424 U.S. at 330, 96 S.Ct. at 900. Waiver also may occur when an administrative remedy would be futile due to the Secretary’s “final” position on the statutory issues. Liberty Alliance for the Blind v. Califano, 568 F.2d 333, 345-46 (3rd Cir.1977). In the present case, the Secretary contends that the putative class members fail to meet both the waivable and nonwaivable requirements. The Court disagrees.

A. Presentation Requirement

Some courts have found that merely applying for benefits is sufficient to meet the presentment requirement under section 405(g). Wright v. Califano, 603 F.2d 666, 668-70 (7th Cir.1979); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Johnson v. Heckler, 100 F.R.D. 70 (N.D.Ill.1983). As the Johnson case correctly points out, “the policy of the Seventh Circuit has been that the initial application for benefits meets the jurisdiction criteria.” Johnson, 100 F.R.D. at 73 n. 5. As such, claimants who have applied for benefits in the present case have met the presentment requirement. Other requirements, however, are obligatory for recipients who have had their benefits terminated. Recipients whose benefits are terminated must present a new claim altogether. Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431, motion to vacate stay denied, 464 U.S. 879, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983) (Rehnquist, J. finding that recipients must file for continued benefits after benefits are terminated). Although the plaintiffs original complaint was drafted so as to include potentially ineligible class members who failed to file for continued benefits, the plaintiff’s amended complaint comports with both the Seventh Circuit’s policy and the requirements set forth by Justice Rehnquist in Lopez. Id. 104 S.Ct. at 14. Consequently, the putative class members have fulfilled the presentment requirement by narrowing the definition of their class as was done in the Johnson case.

B. Exhaustion of Administrative Remedies

In addition to fulfilling the presentment requirement, potential class members must exhaust all administrative remedies or have waiver granted by the court or the Secretary. To waive the “exhaustion of remedies” requirement the court need find only that the claim is collateral to an award of benefits or that exhaustion would be futile. A collateral claim is one in which the legal claim is not tied to the claim for benefits. A positive result in the legal claim will not result necessarily in class members receiving benefits. Johnson v. Heckler, 607 F.Supp. 875, 880 (N.D.Ill.1984). A claim is futile when the Secretary’s position is firm and further administrative appeal would prove unavailing. Thomas v. Heckler, 598 F.Supp. 492, 499 (M.D.Ala.1984).

In the present case, waiver is justified on either ground. Here the claim for benefits is not “inextricably intertwined” with the procedural question being adjudicated. Ringer, 104 S.Ct. at 2021. Moreover, a final decision on the substantive issue here will not automatically determine whether each class member receives benefits. A decision merely will alter the valuation method which may lead to the eventual distribution of benefits. As summarized in Johnson v. Heckler, 607 F.Supp. at 880, a claim is collateral when the sought-after change does not result in all members of the putative class receiving an award of benefits. If change in procedural policy is achieved in the present case, some members still may be denied benefits.

The need for prompt judicial review is also present in this case. The purpose of the SSI program is to provide a minimum amount of income for the aged, blind and disabled. The benefits are distributed to eligible recipients to meet their basic needs. Individuals wrongly denied benefits for food, clothing, and shelter likely would incur substantial hardship. Thus, the necessity for prompt relief cannot be overlooked. Johnson, 100 F.R.D. at 74; see also Caswell v. Califano, 583 F.2d 9, 14 (1st Cir.1978). The requisite elements have been met for waiver on collateral grounds.

The futility requirement is met as well. The case of Jackson v. Schweiker, 683 F.2d 1076 (7th Cir.1982), supports the argument of waiver on futility grounds. In Jackson, the plaintiff also challenged regulations governing SSI benefits which “impute as unearned income to SSI recipients the difference between the fair market rental value and the rent actually paid for shelter.” Jackson v. Schweiker, 683 F.2d at 1077. Because the named plaintiff who had met the exhaustion requirement still failed to receive relief, the district court in Jackson waived exhaustion for the remainder of the class. Jackson v. Harris, 86 F.R.D. 452, 454 (N.D.Ind.1980), aff'd on other grounds sub nom. Jackson v. Schweiker, 683 F.2d 1076 (7th Cir.1982). The Jackson court found that the Secretary’s decision was final as to the named plaintiff and was not likely to be altered for other class members challenging the regulation. Jackson, 86 F.R.D. at 453. Given that the procedural issues discussed by the Seventh Circuit Court of Appeals in Jackson are the same issues involved in the present case, there is no reason to believe the Secretary would alter her stance in any subsequent appeals. The Secretary’s position in Jackson is indicative of what her position is likely to be in the present case. Furthermore, a decision in the Jackson case has provided the Secretary with a clear opportunity to reconsider her position. Her failure to do so indicates that exhaustion of administrative remedies in this case would be futile. See Chico v. Heckler, 710 F.2d 947 (2d Cir.1983); Johnson v. Heckler, 100 F.R.D. at 74 (N.D.Ill. 1983).

The defendant cites the Ringer case in support of her argument that waiver is inappropriate in this case. However, Ringer is distinguishable from the case at hand. In Ringer, the plaintiff sought to alter the Secretary’s policy as to medicare payments for BCBR surgery (bilateral carotid body resection). The Supreme Court found that the plaintiff’s claim for benefits in Ringer was “inextricably intertwined” with the legal claims being adjudicated. Thus, the legal claims were not collateral to the plaintiff’s claim for benefits. Ringer, 104 S.Ct. at 2021. In addition, the court found that further administrative appeal would not have been futile because the administrative law judge was not bound by the previous ruling in the case. Id. at 2024.

The court in Ringer did not call into question a court’s ability to waive exhaustion requirements in certain circumstances. Instead, the court ruled that those circumstances did not exist in Ringer. Class members merely sought reimbursement for surgery which already had been performed. Id. at 2021. Here, the plaintiff seeks only procedural changes. As previously stated, the court’s ruling in the present case will not necessarily result in a payment of benefits to class members. The two cases are factually dissimilar.

C. 60-Day Requirement

Another of defendant’s arguments involves the problem of class members allegedly failing to meet the 60-day requirement of section 206(g) of the Social Security Act. This section requires judicial review “within sixty days after the mailing ... of notice of [final] decision or within such further time as the Secretary may allow.” 42 U.S.C. § 405(g) (1982). The Seventh Circuit Court of Appeals has ruled previously on the 60-day requirement and has found it to be a statute of limitations waivable by the parties and not a jurisdictional requirement. Johnson v. Heckler, 769 F.2d 1202, 1209 (7th Cir.1985); Wilson v. Edelman, 542 F.2d 1260, 1274 (7th Cir.1976); see also, Eldridge, 424 U.S. at 328 n. 9, 96 S.Ct. at 899 n. 9; Salfi, 422 U.S. at 764, 95 S.Ct. at 2466; City of New York v. Heckler, 742 F.2d 729, 737-38 (2d Cir.1984). Here, however, defendant has not waived the 60-day requirement.

In Lopez v. Heckler, 725 F.2d 1489 (9th Cir.1984), the Ninth Circuit Court of Appeals found that the court, as well as the parties, could waive the 60-day requirement in unusual circumstances. The court held that the 60-day limitation would be inapplicable when constitutional claims were raised or when jurisdiction was based on the mandamus statute. Id. at 1506; see also, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Substantial constitutional issues not subject to the 60-day limitation were held to exist in Lopez. Furthermore, the court stated that deference to the agency on the issue of waiver was inappropriate given the bad faith on the part of the Secretary in refusing to follow previous decisions of the court on this matter. Lopez, 725 F.2d at 1506. It was largely the Secretary’s issuance of a clear statement of nonacquiescence which led to a finding of bad faith. Id. at 1500.

In the case at hand, plaintiff cites both Lopez and Holden v. Heckler, 584 F.Supp. 463, 465 (N.D.Ohio 1984), as support for waiver of the 60-day requirement due to the Secretary’s failure to follow the decision of the Seventh Circuit Court of Appeals in Jackson. However, it is not clear from the Jackson decision whether the Secretary is refusing completely to comply with the Seventh Circuit’s decision. The Secretary has not issued a policy of nonacquiescence as was done in Lopez, and without further evidence, it is unclear whether the Secretary has failed to perform her duties as a public official. Consequently, no issue of bad faith has been presented which would merit a waiver of the 60-day requirement. Instead, the court finds that each claimant must have received a final decision within 60 days prior to the filing of this action for the court to maintain jurisdiction over those claimants. Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431, motion to vacate stay denied, 464 U.S. 879, 104 S.Ct. 221, 223, 78 L.Ed.2d 217 (1983) (Stevens, J. dissenting in part, concurring in part).

In Lopez, the Ninth Circuit answers the question of whether a final decision has occurred despite the waiver of exhaustion. Lopez, 725 F.2d at 1505. Plaintiffs who show futility of exhaustion, as the plaintiff has here, “have also demonstrated that they have received a final decision for purposes of the sixty-day requirement.” Lopez. 725 F.2d at 1505. The fact that some potential class members may be subsequently excluded does not affect the ability of the class to become certified. An over-broad class may be narrowed by amendment of the certification order. Fed.R. Civ.P. 23(c)(4) and 23(d); see also, Smith v. Heckler, 595 F.Supp. 1173, 1185 (E.D.Cal.1984). In addition, the plaintiffs who fail to meet the 60-day requirement possibly may invoke jurisdiction under the mandamus statute, 28 U.S.C. § 1361.

D. Mandamus Jurisdiction

Section 1361 of the judicial code provides:

District courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

The Supreme Court has not decided the issue of whether the third sentence of § 405(h) bars mandamus actions arising under the Social Security Act. Ringer, 104 S.Ct. at 2022. Other lower courts, however, have found that mandamus relief under the act is not precluded when claims are “essentially procedural in nature.” Ringer v. Schweiker, 697 F.2d 1291 (9th Cir.1982), cert. granted sub nom. Heckler v. Ringer, 463 U.S. 1206, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981); Sharpe v. Harris, 621 F.2d 530, 532 (2d Cir.1980). A writ of mandamus will not issue unless: (1) plaintiff has a plain right to have the act performed, (2) the defendant has a plain duty to perform it, and (3) no other adequate remedy is available to the plaintiff. Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir.1978); City of New York, 742 F.2d at 729. A writ of mandamus is an extraordinary remedy which should not issue unless the duty upon the defendant is clear and unmistakable. Gillis v. IRS, 578 F.Supp. 69 (D.C.N.H.1983). Where the interpretation or application of a statute or regulation is discretionary, a writ of mandamus is not controlling. Mid-American Regional Council v. Mathews, 416 F.Supp. 896 (W.D.Mo.1976).

Taking into consideration the above prerequisites, it is inappropriate at this time to determine whether jurisdiction can be invoked under § 1361. There is insufficient evidence before this Court which would demonstrate the existence of a duty, and a failure, to act by the Secretary. Therefore, the issue of whether jurisdiction may be invoked under the mandamus statute must be addressed at a later time when more evidence is available to determine whether the Secretary has failed to perform a duty.

E. Requirements of Rule 23(a) and (b)

1. Numerosity

Rule 23(a)(1) requires a class to be so numerous that joinder of each class member is impracticable. No specific number is determinative of whether a class is large enough to be certified. Johnson, 100 F.R.D. at 72. However, it is the plaintiffs burden to show impracticality of joinder. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir.1978).

The statistics introduced by the plaintiff, as well as the plaintiffs stipulation as to numerosity, are sufficient to fulfill the numerosity requirement for class certification in this case. See Smith v. Heckler, 595 F.Supp. at 1186 (plaintiffs introduction of statistics, although not presenting exact figures, gives sufficient indication of the numbers involved).

2. Common Question of Law or Fact

Rule 23(a)(2) requires there to be a common question of law or fact between all members of the putative class. Here, the class is limited only to those SSI applicants or recipients who have been denied initial or continuing benefits under the challenged regulations and who wish to challenge the Secretary’s method of determining such benefits. Therefore, the class definition provides a question of law common to the entire class.

3. Typicality

The typicality element requires the class representative to have a claim “based on the same legal theory” as the claim asserted on behalf of other class members. Long v. Thornton Tp. High School District 205, 82 F.R.D. 186, 190 (N.D.Ill.1979). The nature of each party’s claim must be the same for all parties. Here, the valuation method for determining SSI benefits is challenged on the grounds that it constitutes statutory, regulatory and constitutional violations. The nature of the plaintiff’s claim is no different from that of the other class members.

4. Adequate Representation by Named Plaintiff

The final requirement involves adequate representation by the named plaintiff on behalf of other class members. “Adequacy of representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the plaintiff must not have interests antagonistic to those of the class.” Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir.1977).

The attorneys presently representing the plaintiffs have been found to be adequate counsel several times in the past. See, e.g., Wright v. Califano, 587 F.2d 345 (7th Cir.1978); Jimenez v. Weinberger, 523 F.2d 689 (7th Cir.1975); Johnson v. Heckler, 100 F.R.D. 70 (N.D.Ill.1983). Furthermore, all class members, including the named plaintiff, will benefit equally if relief is granted. The plaintiff’s interest is not adverse or inconsistent with others in the class. In addition, the requirements under 23(b)(2) have been met. Therefore, injunctive and declaratory relief are appropriate with respect to the class as a whole.

III. CONCLUSION

For the reasons stated above, the plaintiff’s motion for class certification is granted under Fed.R.Civ.P. 23(a) and (b) with the following modifications as to the class definition:

The plaintiff class includes those members whose benefits were terminated or reduced pursuant to the policies challenged in this action on or since August 27, 1984, at any stage of the administrative process, or who had challenges to such decisions pending on August 27, 1984. Because the complaint was filed on October 26, 1984, these class members all meet the Act’s statute of limitations requiring that actions for judicial review of the Secretary’s decision be filed within 60 days of the date of the decision.

IT IS SO ORDERED.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Cyrus YONAN, Defendant.
    No. 84 CR 246.
    United States District Court, N.D. Illinois, E.D.
    Nov. 15, 1985.

      Anton R. Yalukas, U.S. Atty., Michele E. Smith, Asst. U.S. Atty., Chicago, 111., for plaintiff.
    Edward R. Genson, Thomas A. Corfman, Genson & Steinback, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Gyrus Yonan (“Yonan”) is charged in a ten-count second superseding indictment with:

1. violation of 18 U.S.C. § 1962(c), one of the provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), Sections 1961-1968 (Count One);
2. violation of Section 1962(a), another RICO provision (Count Two); and
3. eight violations of Section 1341, the mail fraud statute (Counts Three through Ten).

Yonan has moved for dismissal of each count, asserting different theories as to the different substantive charges. For the reasons stated in this memorandum opinion and order, Yonan’s motion is granted in part and denied in part.

Count One: Section 1962(c)

Lawyer Yonan is that rarest of rarae aves: a sole practitioner. To bring him within the reach of Section 1962(c), the government has embraced the strained reading that first saw the light of day in our Court of Appeals’ civil RICO decision in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985) — the notion that a sole practitioner can, in some metaphysical sense, be “employed by” or “associated with” himself or herself. After all, the only conduct Section 1962(c) makes unlawful is defined this way:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

McCullough certainly does violence to the normal use of that language. Though Judge Posner’s opinion does not (of course) acknowledge just how much it bends RICO out of shape, the opinion reaches its result in these terms (757 F.2d at 144):

There would be a problem if the sole proprietorship were strictly a one-man show. If Suter had no employees or other associates and simply did business under the name of the National Investment Publishing Company, it could hardly be said that he was associating with an enterprise called the National Investment Publishing Company; you cannot associate with yourself, any more than you can conspire with yourself, just by giving yourself a nom de guerre. We therefore held in Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 399-402 (7th Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 902, 83 L.Ed.2d 917 (1985), that an enterprise (a national banking association in that case) could not associate with itself for purposes of section 1962(c). But Suter had several people working for him; this made his company an enterprise, and not just a one-man band; and all section 1962(c) requires, as we said in Haroco, is “some separate and distinct existence for the person [Suter] and the enterprise [National Investment Publishing Company],” 747 F.2d at 402.

Even on the government’s own terms, McCullough does not necessarily keep Count One in court. Two months ago our Court of Appeals looked at McCullough in a criminal (rather than civil) RICO context in United States v. DiCaro, 772 F.2d 1314 (7th Cir.1985). DiCaro’s counsel did not argue, and therefore the Court of Appeals had no occasion to consider whether, the McCullough doctrine could be applied retrospectively without violating due process — a subject hereafter dealt with in this opinion. What the Court of Appeals did do was to reverse DiCaro’s RICO conviction because Haroco rather than McCullough governed his situation (id. at 1319-20):

Based on our analysis of both the statutory language and the underlying policies of section 1962(c), we held in Haroco that an individual corporation could not be held liable as a “person” that conducted its own affairs through a pattern of racketeering activity under that section. Id. We began by noting that the terms “person” and “enterprise” are both defined in section 1961 of RICO to include “any corporation,” id., just as both are defined to include “any individual.” Nevertheless, section 1962(e) provides that the person who is charged with conducting the enterprise’s affairs through a pattern of racketeering activity must also be “employed by or associated with” the enterprise. Id. Thus, if we construed section 1962(c) to permit the same entity to be both the person and the enterprise, we would reach the anomalous result that the entity was employed by or associated with itself. After considering the language of section 1962(c), we therefore concluded that Congress did not intend to allow the same entity to be both the person and the enterprise under section 1962(c). Id.
* >}: >}: * sfc *
We recently reaffirmed this interpretation of section 1962(c) in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985). In McCullough, we held that the defendant-proprietor of a sole proprietorship could be held liable under section 1962(e) on the theory that he conducted the affairs of the proprietorship through a pattern of racketeering activity. Id. at 143. We emphasized, however, that the sole proprietorship at issue in McCullough was a business with an identity distinct and separate from that of the defendant himself. Id. at 144. The defendant “had several people working for him; this made his company an enterprise, and not just a one-man band.” Id. “[I]f the sole proprietorship were strictly a one-man show,” on the other hand, we noted that Haroco would preclude liability for the defendant under section 1962(c). Id.
Our holding in Haroco governs the present case.

There is a serious question whether even the McCullough view of Section 1962(c) would sustain Count One. Yonan is a sole practitioner with only a secretary to assist him. What the government argues is that a lawyer who is undisputedly a “one-man show” or “one-man band,” practicing in his own name (not as a professional corporation) and using no assumed name (the latter factor was present in McCullough), is magically transformed, by the act of hiring a secretary, into an “enterprise” by which he in turn becomes “employed” or with which he in turn becomes “associated.” Any such notion would seem to stretch McCullough’s already attenuated extension of Section 1962(c) beyond the breaking point. There is a meaningful difference — one of kind rather than degree— between a law practice, in which only the sole practitioner lawyer may render services directly to clients (so the secretary’s clerical services do not create “a business with an identity distinct and separate from that of the defendant himself,” McCullough, 757 F.2d at 144), and a business in which others too may and do carry on the business activity, though the entrepreneur has chosen a sole proprietorship form of organization (the situation McCullough, id. found sufficient for Section 1962(c) liability). Though it is always risky to predict what a Court of Appeals is likely to do, the most rational answer would seem that Yo-nan (like DiCaro) would be controlled by Haroco and not by McCullough.

But even were that not the case, Count One must fall. Were the 1985 McCullough reading of the statute extended to sweep up Yonan’s 1980 conduct, what would be most significant for current purposes is not whether the surprising McCullough holding is right or wrong, but rather the very fact that it is so surprising.

American jurisprudence has long distinguished between criminal and civil liability in the extent to which the law insists on predictability as a condition of such liability. That distinction may perhaps not commend itself to those to whom no logical distinction exists between property interests (the money at stake in a civil action) and liberty interests (the potential of imprisonment in a criminal prosecution), but it exists nonetheless. It is one thing for a court to announce a defendant may be mulcted in damages by a novel and surprising reading of RICO, but it is quite another to render the same defendant vulnerable to a prison term.

As a Due Process Clause restriction on Congress, United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954) put the proposition this way:

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

And as a like restraint on judicial inventiveness, Bouie v. City of Columbia, 378 U.S. 347, 352-54, 84 S.Ct. 1697, 1701-03, 12 L.Ed.2d 894 (1964) announced:

There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311, [62 S.Ct. 237, 240, 86 L.Ed. 226], “judicial enlargement of a criminal Act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.” Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot “be cured in a given case by a construction in that very case placing valid limits on the statute,” for
“the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss____” Freund, The Supreme Court and Civil Liberties, 4 Vand.L. Rev. 533, 541 (1951).
See Amsterdam, Note, 109 U.Pa.L.Rev. 67, 73-74, n. 34. If this view is valid in the case of a judicial construction which adds a “clarifying gloss” to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortiori so where the construction unexpectedly broadens a statute which on its face had been definite and precise. Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater than it was, when committed.” Calder v. Bull, 3 Dall. (3 U.S.) 386, 390, 1 L.Ed. 648. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582, 586, 75 L.Ed. 1264. The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. Id., at 61.

No reasoned distinction may be made between a state supreme court that so enlarges a state criminal statute and a federal Court of Appeals (or even the United States Supreme Court) that does the same to a federal criminal statute. Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977) (citing to the state-statute-invalidating decisions in Bouie and in Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) (per curiam)) confirmed that obvious proposition:

The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. [(3 U.S.)] 386 [1 L.Ed. 648] (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U.S. 309, 344 [35 S.Ct. 582, 594, 59 L.Ed. 969] (1915). But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 811-12, 98 L.Ed. 989] (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed 888] (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.

Much the same point was made by this Court in United States ex rel. Reed v. Lane, 571 F.Supp. 530, 532 (N.D.Ill.1983) (emphasis in original, quotation from Harriss omitted) in the context of a statute rather than of an unexpected judicial gloss:

Essentially Reed relies on the principle that due process requires a person to be fairly apprised of criminal consequences at the time he acts____ If such notice is not fairly given by a statute, that statute is deemed unconstitutionally vague under the standard of United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)....
Of course every such argument relies on a fiction: the notion that a person bent on criminal activity is indeed aware of what the law provides, as though the potential murderer carries a copy of the Illinois Criminal Code with him (or has it committed to memory). But it is a necessary fiction if the concept of mens rea is not to be subverted. This Court then must look at what Reed was fairly apprised of at the time he was confronted with the decision of how to act in the face of Hall’s menace to his own life.

That decision was affirmed by our Court of Appeals on precisely that ground, 759 F.2d 618, 621-22 (7th Cir.1985).

There is no gainsaying McCullough was unforeseeable in any rational sense. It cited no authority at all for its freewheeling analysis. Before McCullough the established (and sensible) judicial construction of RICO was that the “person” and the “enterprise” in Section 1962(c) could not be the same. Haroco, 747 F.2d at 399-402 (approving this Court’s reading of the statute in Parnes v. Heinold Commodities, Inc., 548 F.Supp. 20, 23-24 (N.D.Ill.1982)), aff'd per curiam, — U.S. -, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). There is no reasonable way in which Yo-nan, acting in 1980, could have anticipated the conduct charged in Count One would be criminal under Section 1962(c) — no reasonable way in which he could have had the mens rea proscribed by the statute’s literal meaning or by its reasonable meaning without the McCullough gloss.

In sum, Count One cannot be sustained either (1) because it does not charge an offense under Section 1962(c) even with the McCullough gloss or (2) if it does, because it is fatally deficient in due process terms. Yonan’s motion for its dismissal is granted.

Count Two: Section 1962(a)

Count Two poses a different problem and (perhaps not surprisingly) comes to a different end. It charges Yonan with having received income derived from a “pattern of racketeering activity” (the triggering device for all RICO responsibility) and having “used and invested” that income and its proceeds “in the establishment and operation” of Yonan’s same sole proprietorship— again charged to be an “enterprise.” That is said to bring into play Section 1962(a):

It shall be unlawful for any person who has received any income derived, directly or indirectly,'from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

At the same time Haroco, 747 F.2d at 400-01 subscribed to this Court’s Parnés reading of Section 1962(c), our Court of Appeals announced in dictum a different view of Section 1962(a) (id. at 402):

However, a corporation-enterprise may be held liable under subsection (a) when the corporation is also a perpetrator. As we parse subsection (a), a “person” (such as a corporation-enterprise) acts unlawfully if it receives income derived directly or indirectly from a pattern of racketeering activity in which the person has participated as a principal within the meaning of 18 U.S.C. § 2, and if the person uses the income in the establishment or operation of an enterprise affecting commerce. Subsection (a) does not contain any of the language in subsection (c) which suggests that the liable person and the enterprise must be separate. Under subsection (a), therefore, the liable person may be a corporation using the proceeds of a pattern of racketeering activity in its operations. This approach to subsection (a) thus makes the corporation-enterprise liable under RICO when the corporation is actually the direct or indirect beneficiary of the pattern of racketeering activity, but not when it is merely the victim, prize, or passive instrument of racketeering. This result is in accord with the primary purpose of RICO, which, after all, is to reach those who ultimately profit from racketeering, not those who are victimized by it.

Haroco (like McCullough after it) cited no authority for that reading, and neither the government’s memorandum nor this Court’s own research has uncovered any prior case — and certainly none before 1980 —announcing or supporting such a reading.

As the Count One discussion in this opinion reflects, however, that absence of prior precedent is not controlling. Though it might be odd to speak of an individual’s “investpng]” in himself, the terms “invest” and “use” appear in Section 1962(a) in the disjunctive (see n. 8). And there is nothing unreasonable or surprising (remembering that an individual doing business in sole proprietorship form can by definition be an “enterprise” for RICO purposes) in a literal reading of the alternative language drawn directly from Section 1962(a):

It shall be unlawful for any person who has received any income derived ... from a pattern of racketeering activity ... to use ... any part of such income, or the proceeds of such income, in ... the ... operation of, any enterprise [his sole proprietorship] which is engaged in, or the activities of which affect, interstate ... commerce.

Certainly Congress could rationally have decided an individual who engages in a “pattern of racketeering activity” and puts his or her ill-gotten gains to work in his or her interstate-commerce-affecting business (a sole proprietorship) should be criminally responsible under federal law, while the same person who puts the same dollars into flashy sportscars should not. That concept does not require any notion of the individual’s being “employed by” or “associated with” the business. It does not war with the normal meaning of the words used, and the portion of the statute quoted in the preceding paragraph could rationally have been expected in 1980 to embrace the conduct charged to Yonan in Count Two. That is enough for due process purposes.

As to Count Two, that leaves only the “pattern of racketeering activity” question, as to which Yonan Mem. 16-17 seeks to rely on this Court’s opinion in Northern Trust Bank/O’Hare, N.A. v. Inryco, Inc., 615 F.Supp. 828 (N.D.Ill.1985). But Count Two incorporates the substantive allegations of Count One, and paragraph 4 of the latter count charges Yonan with these multiple acts of bribery:

(1) On or about September 22, 1980 defendant CYRUS YONAN, JR. gave $100 to James Costello to give to Terrence Hake to influence the handling and disposition of People v. Constance Warr.
(2) On or about October 14, 1980, defendant CYRUS YONAN, JR. gave $300 to Terrence Hake to influence the handling and disposition of People v. Willie Balls, People v. Constance Warr and People v. John Gilbert.
(3) On or about November 7, 1980, defendant CYRUS YONAN, JR. gave $50 to Terrence Hake to influence the release of a car seized in connection with the arrest of Roosevelt Mitchell.
(4) On or about November 10, 1980, defendant CYRUS YONAN, JR. gave $100 to Terrence Hake to influence the handling and disposition of People v. Willie Booker.
(5) On or about November 13, 1980, defendant CYRUS YONAN, JR. gave $100 to Terrence Hake to influence the handling and disposition of People v. Henry Talbert.
(6) On or about November 26, 1980, defendant CYRUS YONAN, JR. gave Terrence Hake $100 to influence the handling and disposition of People v. James Jones, People v. Thomas McCreary and People v. Willie Blue.
(7) On or about December 1, 1980, defendant CYRUS YONAN, JR. offered money to Terrance [sic] Hake to influence the handling and disposition of People v. Alan Wyman.

True enough, Yonan is alleged to have made all his payments to one person — Terrence Hake, who proved to be an undercover agent. But the payments were assertedly made to fix a whole series of criminal cases in the Cook County Circuit Court. Those separate acts of bribery to fix ten separate cases, involving as many different criminal defendants, contrast sharply with the mailing of more than one letter to implement a single kickback scheme (the situation in Inryco). Surely what Yonan is charged with can fairly be read as a “pattern” within the very language of Inryco, 615 F.Supp. at 831 (emphasis in original) quoted by Yonan Mem. 16:

True enough, “pattern” connotes similarity, hence the cases’ proper emphasis on relatedness of the constituent acts. But “pattern” also connotes a multiplicity of events: Surely the continuity inherent in the term presumes repeated criminal activity, not merely repeated acts to carry out the same criminal activity. It places a real strain on the language to speak of a single fraudulent effort, implemented by several fraudulent acts, as a “pattern of racketeering activity.”

Count Two thus stands in a very different posture from Count One. Yonan’s motion to dismiss Count Two is denied.

Counts Three through Ten: Section 1341

Finally, Yonan is charged in Counts Three through Ten with eight violations of Section 1341, the federal mail fraud statute. Those charges are couched in what has become the all-too-familiar “intangible rights” theory: an alleged scheme to defraud:

(a) Cook County and its citizens, its public officials, and its public employees of their right to have the business of the Cook County Circuit Court conducted honestly, fairly, impartially, free form [sic] corruption, collusion, partiality, dishonesty, conflict of interest, bribery and fraud, and in accordance with the laws of the State of Illinois.
(b) Cook County and its citizens of their right to have criminal cases prosecuted and decided free from the influence of corruption, collusion, partiality, dishonesty, conflict of interest, bribery and fraud in accordance with the laws of the State of Illinois.
(c) The Cook County Circuit Court and the citizens of Cook County and of Chicago of their right to the loyal, faithful and honest services of certain public officials in the performance of acts related to their public employment.

Yonan’s scheme is charged to have embraced the payment of bribes to prosecutor Terrence Hake (“Hake”), assigned to Circuit Court Branch 57, to fix cases involving Yonan’s clients. Federal jurisdiction hinges on Yonan’s, on the eight occasions specified in the mail fraud counts, having caused the Circuit Court to mail him bail bond refund checks (the “Refunds”) for the cases involved in the fix efforts.

Yonan launches two attacks on the Section 1341 counts:

1. He says he cannot be liable under the “intangible rights” doctrine because he is not a fiduciary of the public and the asserted scheme involved no such fiduciary.
2. He argues the mailing of the Refunds was not “for the purpose of executing” the claimed scheme.

Both onslaughts are unsuccessful, leaving the mail fraud portion of the indictment intact.

1. “Intangible Rights” Doctrine

Yonan is not charged with defrauding anyone of tangible property. Instead the indictment asserts he schemed to deprive the public of what has been called its “intangible right” to fair and honest government. See, e.g., United States v. Alexander, 741 F.2d 962, 964 (7th Cir.1984); United States v. Margiotta, 688 F.2d 108, 121 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

Yonan seeks to focus on an essential aspect of the “intangible rights” concept exemplified by Alexander, 741 F.2d at 964:

A scheme to obtain tangible property is cognizable under the mail fraud statute regardless of the relationship between the defendant and his victim. In contrast, an intangible rights scheme is only cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity.

Because Hake (unknown to Yonan) was an undercover agent, only pretending to be a corrupt prosecutor (Government Mem. 4), Yonan urges Hake could not be a “schemer” in the real sense. And because Hake was the only one involved in the alleged scheme who might be characterized as having a “fiduciary relationship” with the defrauded public, Yonan says the just-quoted Alexander test has not been met as a matter of law. To evaluate that argument, it is profitable to engage in a brief review of the fact patterns in relevant “intangible rights” cases.

In United States v. Freedman, 568 F.Supp. 450 (N.D.Ill.1983) this Court dismissed Section 1341 counts against private attorneys who had allegedly taken money from their clients on the representation they would use the money to bribe the judge handling the clients’ cases. But the lawyers were actually engaged in their own “ripoff” for their own benefit: There was no allegation they had in fact bribed or attempted to bribe any judge. This Court held (id. at 452-56):

1. Private attorneys are not, by virtue of their ethical obligations or status as “officers of the court,” fiduciaries of the public.
2. Persons who are not actual participants in the operations of government (though that is a functional test and not one of mere definition) are not public fiduciaries.

Consequently attorneys Freedman and Moore (his codefendant) were not fiduciaries of the public and were not indictable under an intangible rights application of Section 1341.

Alexander (also involving a private attorney) approved the Freedman line of analysis in the language quoted on page 730 of this opinion. But Alexander then made it clear the mere fact of the defendant lawyer’s non-public-fiduciary status would not insulate him from intangible rights mail fraud conviction if his scheme included someone who was a public fiduciary. Alexander was in fact alleged and proved to have schemed with three employees of the Cook County Board of [Tax] Appeals to obtain fraudulent reductions of his clients’ assessments. While confirming Alexander was not himself a fiduciary of the public, the court said (741 F.2d at 964)(eitation omitted):

There can be no doubt that a non-fiduciary who schemes with a fiduciary to deprive the victim of intangible rights is subject to prosecution under the mail fraud statute ____ More recently, the court in Freedman observed that, “there is no doubt a private attorney who uses the mails to carry out a scheme to defraud involving the actual bribery of public officials is indictable under Section 1341 on an ‘intangible rights’ theory.” 568 F.Supp. at 453.

Alexander’s indictment characterized the Board of Appeals employees as his “co-schemers” who in fact “fraudulently reduced assessments” (741 F.2d at 965). Those facts were adequate to support private attorney Alexander’s mail fraud indictment and conviction {id.).

United States v. Kaye, 586 F.Supp. 1395 (N.D.Ill.1984) (“Kaye I”) and 593 F.Supp. 193 (N.D.Ill.1984) (“Kaye II”) presented this Court with a fact pattern that mixed elements of Freedman and Alexander. Though Yonan seeks to rely heavily on Kaye II in attacking his own mail fraud counts, an analysis of Kaye I and Kaye II affords Yonan no comfort.

Kaye was a part-time deputy sheriff whose duties included attendance at court proceedings. Kaye I, 586 F.Supp. at 1403. One of Kaye’s schemes was to take money from litigants while falsely representing he would use the money to bribe judges— what this Court described as “a cottage industry of his own.” Kaye II, 593 F.Supp. at 196.

Without doubt Kaye was a public fiduciary. But his Section 1341 indictment had two flaws, the first apparent from the indictment itself and the second emerging after trial:

1. Absent any showing Kaye actually attempted to pass the money to the judges, he “could not have deprived the public of its right to honest judges.” Kaye I, 586 F.Supp. at 1403.
2. Absent proof Kaye used his position as deputy sheriff to solicit the bribes, his acceptance of money from litigants was not a breach of his fiduciary duty as a deputy sheriff. Kaye II, 593 F.Supp. at 196.

That first defect plainly concerned the nature of Kaye’s scheme, while the second concerned the scope of Kaye’s own fiduciary obligations to the public. It is with that distinction in mind that this Court’s Kaye II opinion must be read to determine its impact on Yonan.

While Counts Three through Ten of Yo-nan’s indictment refer only to “a prosecutor in Branch 57,” the government’s memorandum acknowledges that was Hake, the Assistant State’s Attorney referred to in Counts One and Two. As already said, Hake was an undercover agent rather than a venal prosecutor. When he took the money from Yonan, Hake did not breach any fiduciary duty to the public. Instead he was helping to catch Yonan.

Under Alexander (and Freedman), private attorney Yonan is not himself a public fiduciary. If the earlier-quoted language from Alexander were to be taken literally as a limitation on Section 1341, that would mean Yonan must have “schemed” with a public fiduciary to come within intangible right mail fraud. And in that respect Yo-nan accurately says this case, unlike Alexander, involved no scheming fiduciary: Hake clearly did not have any intent to defraud the public.

In the same vein, Yonan cites a sentence from Kaye II in support of his argument the fiduciary must himself be corrupt. There, after this Court had quoted the Alexander language that an intangible rights scheme “is only cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity,” it added (593 F.Supp. at 196)(emphasis in original):

And that necessarily means the schemer must have been shown to have breached that fiduciary relationship.

But as should be clear from the prior discussion of Kaye I and Kaye II, that language spoke only of whether Kaye had breached his own fiduciary duty as a deputy sheriff by taking bribes. If a public official has violated no fiduciary duty, he or she has committed no intangible-rights fraud cognizable under Section 1341 — that much is elementary. But Section 1341 speaks of an individual’s devising a scheme, not of two or more persons entering into a conspiracy — and nothing in Alexander or Kaye II can be read as somehow amending the statute to require a conspiracy between a non-fiduciary and a fiduciary before the scheming non-fiduciary may be held criminally responsible.

That distinction is made even more plain by an examination of the scheme charged here. It involved the giving and offering of money to a prosecutor with a corrupt intention on the giver’s (Yonan’s) part. Nothing in Section 1341 (or the indictment) also requires the connivance of the public official, just as the Illinois bribery statute (Ill.Rev.Stat. ch. 38, § 33-1) charged in Counts One and Two looks only to the intent of the briber and not of the recipient: A person commits bribery when:

(b) With intent to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness, he promises or tenders to one whom he believes to be a public officer, public employee, juror or witness, any property or personal advantage which a public officer, public employee, juror or witness would not be authorized by law to accept

From the perspective of the bribe giver (or in this case, the non-fiduciary schemer), the crime is complete when the bribe is tendered, whether (in the case of either the bribe or the scheme) it is then rejected, or accepted with a like fraudulent intent, or “accepted” by an undercover agent lacking the mens rea of a bribe-taker or a co-schemer. By contrast, Kaye II involved the criminal responsibility of a bribe taker, who could breach his fiduciary duty to the public only if he or she had the requisite mens rea. Neither the quoted sentence from Kaye II nor that quoted earlier from Alexander can carry the baggage Yonan tries to load onto the language. There is no need for the government to charge or prove Yonan had a coschemer who breached his fiduciary duty to the public.

For essentially the same reason, Yonan’s citations of cases dealing with principles of conspiracy and of aiding and abetting are off the mark. Each of those subjects requires only brief discussion.

As for the first of those topics, it is true a few cases have said “conspiracy principles apply” in multiparty mail fraud schemes, even absent a conspiracy count. See, e.g., United States v. Dick, 744 F.2d 546, 552 (7th Cir.1984); United States v. Wormick, 709 F.2d 454, 461 (7th Cir.1983). And by definition “conspiracy” requires an agreement to violate the law. But that language too must be read in context. In each of Dick and Wormick a co-schemer who did not actually mail anything was held accountable for the mailings of others because there was an agreement among the co-schemers. Neither case modifies Section 1341 to hold such an agreement is required before a “scheme” can even come into being.

Nor is the aiding-and-abetting analogy proposed by Yonan apposite. Hake was not the “principal” of this alleged scheme— Yonan was. Intangible rights convictions do not require the public fiduciary to be the principal, because the scheme (like bribery) may originate with the corrupt offeror. If it does (as charged here), the offeror does not “aid and abet” the offeree. Yonan simply reads Freedman and Alexander incorrectly on this score. Neither case addressed the degree of culpability required of the public fiduciary, because no fiduciary was present in Freedman and those involved in Alexander were concededly culpable. Neither case requires the public fiduciary to occupy the role of a principal.

In sum, Yonan’s first challenge to Counts Three through Ten fails. Analyzed in terms of the issues they actually spoke to, neither Alexander nor Kaye II (much less Freedman or Kaye I) requires an intangible rights scheme to include actual bribery of a corrupt public fiduciary. Yo-nan is charged with having devised the scheme to defraud. Nothing more (besides the mailings themselves) is required to support the indictment.

2. Mailing “for the Purpose of Executing Such Scheme”

Yonan also attacks the other element of a Section 1341 charge — that the mailing be “for the purpose of executing such scheme.” That language requires more than a merely incidental connection. As United States v. Maze, 414 U.S. 395, 405, 94 S.Ct. 645, 651, 38 L.Ed.2d 603 (1974) (footnote omitted) said:

Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme. But it did not do this; instead, it required that the use of the mails be “for the purpose of executing such scheme or artifice____”

United States v. Cina, 699 F.2d 853, 861 (7th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983) put the same thought this way (quoting United States v. Brown, 583 F.2d 659, 664 (3d Cir.1978)):

The completion of the scheme must depend in some way upon the mailings charged.

Yonan would have it the mailing of the Refunds did not bear that relationship to the alleged scheme. But though he seeks to distinguish United States v. Murphy, 768 F.2d 1518 (7th Cir.1985), that case controls here. Murphy also premised federal mail fraud jurisdiction on the mailing of bail bond refunds to lawyers (in that case they had paid bribes to Judge Murphy). It is worth quoting the opinion at some length (id. at 1529-30):

The mail fraud counts were based on the mailings of the [Refunds]. Murphy says that these mailings were not part of any fraud committed against the people of Cook County. The [Refunds] were matters between the clients and the lawyers; he had nothing to do with them. He relies on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), and Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). In each of these cases the Court held that mailings that merely settle accounts among the victims after the fraud had taken place do not bring the fraud within the mail fraud statute.
The jury was entitled to conclude, however, that the mailings of the [Refunds] were integral to the offense. Murphy received payoffs. Lawyers paid the bribes in order to secure their own profits, and those profits came by way of the [Refunds]. In the morning the lawyers would fix cases (or hustle clients), and Murphy would release the [Refunds] to the lawyers. In the afternoon the lawyers would pay the judge for services rendered. The next day the process would be repeated. In Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), a scheme under which the defendant induced his spouse to send money through the mail, the defendant absconded with the loot, which the Court held violated the mail fraud statute. The mails carried the money to be used in the offense. Here it was the anticipation of receiving the [Refunds] in a given case (and future cases) that both financed the bribes and made the scheme profitable. It may be that Murphy did not care whether the lawyers picked up checks in person or whether the court sent them out by messenger instead of mail. But the statute does not demand that the mail (as opposed to some other form of delivery) be essential to the offense. It is enough if use of the mail is an ordinary or expectable event in the course of the scheme and the mailings further the scheme. United States v. Lea, 618 F.2d 426, 430 (7th Cir.), cert. denied, 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980).

Murphy teaches the mailing of Refunds to the attorney — a normal practice in the Circuit Court as a means of securing the attorney’s fee — need not itself be fraudulent. Judge Murphy’s scheme required payments to him, for the Refunds “financed the bribes.” In Yonan’s alleged scheme the connection was even more direct, for the Refunds were the very goal of the scheme. Thus Count Three ¶ 5 alleges:

It was further a part of the scheme to defraud that CYRUS YONAN, JR., did obtain money and other benefits for himself in the form of Cash Bond Refund ... checks and additional fees by corruptly disposing of criminal cases pending against his clients.

And whether or not that allegation is made, a conviction would be sustainable so long as the proof at trial were to establish such a link (see Murphy, 768 F.2d at 1529).

Indeed, the case against Yonan (if proved, of course) is a stronger one than Judge Murphy’s. In Murphy the jury was required to find Judge Murphy authorized payment of Refunds (involving no direct benefit to him) as a means of funding the bribes he expected to receive. By contrast, the receipt of the Refunds directly completed Yonan’s alleged scheme to profit from corruption. Cina, 699 F.2d at 861. Indeed, an even shorter answer is found in Murphy’s holding, 768 F.2d at 1530:

[T]he statute does not demand that the mail ... be essential to the offense. It is enough if use of the mail is an ordinary or expectable event in the course of the scheme and the mailings further the scheme.

On the indictment’s allegations the mailing of Refunds was “knowingly caused” by Yonan “for the purpose of executing the scheme to defraud.”

Nor is Yonan assisted by his attempted reliance on Maze, 414 U.S. at 401-02, 94 S.Ct. at 649-50 (a credit-card fraud case) and Parr, 363 U.S. at 390-91, 80 S.Ct. at 1183-84 (a real-estate-tax fraud case). Each was critically different from the present situation.

Thus, as Maze, 414 U.S. at 402, 94 S.Ct. at 649-50 explained, the charged mailings there were “directed to the end of adjusting accounts” among the victims of the scheme and provided no benefit to the defendant:

[Tjhere is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.

In contrast, success for Yonan was the very receipt of the Refunds themselves.

Similarly Parr, 363 U.S. at 391, 80 S.Ct. at 1183-84, said this of the mailings charged there (tax statements and receipts the defendants were required by state law to mail):

[I]t cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the federal mail fraud statute, even though some of those who are so required to do the mailing ... plan to steal, when or after received, some indefinite part of [the money].

There is no suggestion here that any law required the mailings to Yonan; but even if it were otherwise, it must be remembered it was Yonan’s own asserted scheme that was intended to put into motion the fraudulent case dispositions that triggered the Refunds. That is enough for criminal responsibility.

In sum, Yonan reads the Section 1341 mailing requirement too narrowly. There is no doubt the charged mailings were “for the purpose of executing” the scheme. And on the indictment’s allegations, Yonan “caused” the mailings in the sense defined by United States v. McManigal, 708 F.2d 276, 281 (7th Cir.1983):

To use the mails in furtherance of a scheme requires only that a defendant commit an act with knowledge that the use of the mails will follow in the ordinary course of business, or commit an act when the use of the mails can reasonably be foreseen.

Yonan’s second line of attack on the mail fraud counts, like his first, is unsuccessful.

Conclusion

For the reasons this opinion has reflected, Count One of the indictment is dismissed, but all the other counts survive. On or before November 20, 1985 Yonan’s counsel is directed to file a statement as to which (if any) other motions, previously filed before Judge McMillen and not yet ruled upon, still require disposition in light of these rulings.

      . As the case number indicates, this indictment is whiskered in criminal-case terms (particularly since the advent of the Speedy Trial Act). It had been pending on Judge McMillen’s calendar from the time the original indictment was returned in early 1984 until August 20, 1985, when this Court received it by random reassignment because Judge McMillen had realized he would be unable to dispose of the case before his scheduled retirement from our District Court. This Court acquired the case cum onere — with a pending motion to dismiss the most recent superseding indictment, which had just been returned July 17, 1985. This Court promptly set a schedule for completion of the briefing on the motion to dismiss, a schedule that has now been complied with.

      . All further references to sections of Title 18 will simply take the form "Section — .”

      . McCullough accomplishes that sleight of hand by defining the sole proprietor, when assisted by others (here the "others” are singular — the lawyer’s secretary), as an "enterprise.” That amiable fiction then assertedly permits the same sole proprietor to put on the other hat of being a "person” who is “associated with” or "employed by" that person’s own "enterprise.”

      . DiCaro, id. at 1319 did not identify that due process argument as having béen one of defendant’s lines of attack on his RICO conviction.

      . This discussion assumes McCullough is a correct reading of Section 1962(c) — a question as to which this Court is unregenerate but must bow to higher authority even if it views that authority as mistaken.

      . In its current briefing the United States points to pre-McCullough cases that hold an individual can be an “enterprise" in RICO terms. Of course that is no surprise — Section 1961(4) says so literally. But it is the wrong issue: What was unforeseeable for purposes that control this case was not the individual sole proprietor as “enterprise,” or the individual sole proprietor as “person" (a tautology as well as a literal reading of Section 1961(3)), but rather the bizarre idea the individual qua “person" could be "associated with” or "employed by” himself qua "enterprise,” thus meeting the test for Section 1962(c) liability. It is of course too late to speculate whether the Court of Appeals would have reached the same result had that question been posed to it in the first instance as a matter of criminal responsibility and not (as in McCullough ) as a matter of civil liability.

      . Haroco, 747 F.2d at 399 identified United States v. Hartley, 678 F.2d 961, 987-90 (11th Cir.1982), cert. denied, 459 U.S. 1170, 1183, 103 S.Ct. 815, 834, 74 L.Ed.2d 1014, 1027 (1983) as a maverick decision that had "held that the corporation at the center of a fraudulent scheme could be both the person and the enterprise under section 1962(c).” Again what is significant is not the unsoundness of that opinion, but the fact its extraordinary construction of the language of the statute — which reads so differently — came well after 1980 and could not reasonably have been anticipated at that earlier date.

      . Like the phrase next quoted in the text ("establishment and operation”), the indictment charges in the conjunctive even though the statute reads in the disjunctive. It is a familiar rule that an indictment "may allege commission of the offense by all the acts mentioned if it uses the conjunctive ‘and’ where the statute uses the disjunctive ‘or.’ ’’ 1 Wright, Federal Practice and Procedure: Criminal 2d § 125, at 373 (1982). Consistently with the statute, the government is not required to prove both branches of the conjunctive charge beyond a reasonable doubt to obtain a conviction. Instead, conviction may be based on proof beyond a reasonable doubt of the facts represented by either of the disjunctive alternatives.

      . See Cashco Oil Co. v. Moses, 605 F.Supp. 70, 71 (N.D.Ill.1985).

      . Section 1341 provides in relevant part:
      Whoever, having devised ... any scheme or artifice to defraud, ... for the purpose of executing such scheme or artifice or attempting so to do ... knowingly causes to be delivered by mail according to the direction thereon, ... any ... matter of thing [whatever to be sent or delivered by the Postal Service], shall be fined not more than $1,000 or imprisoned not more than five years, or both.

      . More precisely, the Section 1341 crime is complete when the scheme is "devised” and there is a mailing "for the purpose of executing” the scheme (a requirement discussed later in this opinion).

      . It is puzzling that Counts Four through Ten incorporate by reference only paragraphs 1 through 4 (and not paragraph 5) of Count Three. Given the checkered history of the indictment, it seems very possible that represents an oversight. But the omission (which has gone unmentioned by Yonan) is not critical, for the first four paragraphs sufficiently charge a scheme to defraud, and the last paragraph of each count charges the specified mailing was intended to execute the scheme.

      . See also the discussion of Maze in United States v. Isaacs, 493 F.2d 1124, 1151 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974):
      Maze had received the full benefit of each fraudulent use of the stolen credit card before the transmittal of the invoices by mail to the Louisville bank.

      . Yonan’s case could not even arguably parallel Parr unless Yonan were required by law to request the mailing of the Refunds. And of course he was not.


author: LAFFITTE, District Judge.

text:
    Alicia CONCEPCION PEREZ, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 82-2331 HL.
    United States District Court, D. Puerto Rico.
    Nov. 15, 1985.

      Samuel Pagan Pagan, Bayamon, Puerto Rico, for plaintiff.
    Asst. U.S. Atty. Francisco Besosa, Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

LAFFITTE, District Judge.

This case was remanded to the Secretary for additional consideration of plaintiff’s alleged hypertensive condition. Upon remand a new hearing was held after which the Secretary reiterated her previous opinion that plaintiff had no severe impairment which significantly limited her capacity to perform her past work. After a thorough review of the whole record we find that the Secretary’s decision is not supported by substantial evidence and that the Medical-Vocational Guidelines direct a finding of disability in this case.

Plaintiff was 55 years of age when her insured period expired. (Tr. 50.) She has a third grade education and work experience as a domestic maid, (Tr. 50). The undisputed medical evidence shows that plaintiff suffers from arterial hypertension and moderate arthritis (Tr. 82, 134, 152, 168). Although none of these conditions is per se disabling, they impose certain limitations in her physical capacities which will certainly limit her in the performance of her past work as a maid.

According to the consultative physicians, in an eight-hour work day plaintiff could stand and walk up to four hours and sit up to six hours (Tr. 88, 161). Her work as a maid required her to stand and walk almost the whole eight hour work day. Therefore, the medical evidence demonstrates that plaintiff is precluded from performing her past work.

In the sequential evaluation of a disability claim, the next inquiry is whether the claimant’s impairment prevent her from performing other work of the sort found in the economy. GOODERMATE v. SECRETARY OF HEALTH AND HUMAN SERVICES, 690 F.2d 5 (1st Cir.1982). When this fifth step is reached, the Medical-Vocational Guidelines (the Grid) enter into play. When the findings of fact coincide with all of the criteria of a particular rule, that rule directs the conclusion as whether the claimant is or is not disabled. VAZQUEZ v. SECRETARY OF HEALTH AND HUMAN SERVICES, 683 F.2d 1 (1st Cir.1982).

The undisputed facts in this case coincide with the criteria of Rule 202.01 of Table No. 2, Appendix 2, Title 20, Subpart P. Plaintiff is of advanced age (55 or over), 20 C.F.R. Sec. 404.1563(d); she has a marginal education (6th grade or less), 20 C.F.R. Sec. 404.1564(b)(2); her past work experience is on unskilled work (Tr. 181), and the uncontroverted medical evidence supports the Secretary’s finding that plaintiff’s physical capacity is limited to light work (Tr. 181). With these facts in mind, Rule 202.01 directs a finding of disabled.

WHEREFORE, in light of the applicable law and jurisprudence, the Secretary’s decision is hereby REVERSED and a finding of disability is hereby entered.

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

      . The Secretary discredited all this medical evidence finding that plaintiff is not following her prescribed medical treatment. However, we have reviewed the whole record and there is no evidence to support that conclusion.


author: WEXLER, District Judge.

text:
    Walter BOLAND, Plaintiff, v. Thomas COUGHLIN, New York State Corrections Commissioner and Raymond Bara, Superintendent, Long Island Correctional Facility, Defendants.
    No. CV 85-1579.
    United States District Court, E.D. New York.
    Nov. 18, 1985.
    Walter Boland, pro se.
    Robert Abrams, New York State Atty. Gen., Albany by Robert K. Drinan, Mineóla, N.Y., for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff Walter Boland, pro se, an inmate at the Ossining Correctional Facility, commenced this action pursuant to 42 U.S.C. § 1983 against Thomas Coughlin, Commissioner of the New York State Department of Corrections and Raymond Bara, Superintendent of the Long Island Correctional Facility, for acts in violation of plaintiff’s constitutional rights. Plaintiff seeks monetary and injunctive relief. Defendants have moved to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Defendant’s motion is granted and the case is dismissed.

FACTS

The following facts are undisputed. From August 5, 1984 until September 5, 1984, and from March 12 to March 21, 1985, plaintiff was placed in a Special Housing Unit (“SHU”) at the Long Island Correctional Facility as punishment for disciplinary violations. The SHU cell in which plaintiff was detained did not contain a toilet or washbasin and had no running water. In order for plaintiff to use the bathroom, he was required to summon the guard and be escorted to a toilet outside his cell. Plaintiff was never denied the opportunity to use the bathroom.

DISCUSSION

In considering a motion to dismiss for failure to state a claim upon which relief can be granted the court must construe the allegations favorably to the plaintiff and may not dismiss the complaint unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Jacobson v. Coughlin, 523 F.Supp. 1247 (N.D.N.Y.1981). The courts must be particularly liberal in construing pleadings submitted by pro se inmate litigants. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.1983). With these principles in mind, the court turns to Mr. Boland’s allegation that his constitutional rights were violated.

In order to survive a motion to dismiss an action brought under 42 U.S.C. § 1983, plaintiff must allege a deprivation of a federal right by a defendant acting under color of state title. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Plaintiff contends that the defendants’ acts violated his rights under the eighth amendment, as made applicable to the states through the fourteenth amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Plaintiff contends that the conditions in the SHU cell violated his constitutional rights because “the place of confinement lacked the most basic elements to maintain any degree of personal hygiene.”

It is well-settled that conditions of confinement violate the eighth amendment only when those conditions involve the wanton and unnecessary infliction of pain or are grossly disproportionate to the severity of the crime warranting imprisonment. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Anderson v. Coughlin, 757 F.2d 33 (2d Cir.1985). The Supreme Court has repeatedly emphasized that prison officials are to be “accorded wide ranging deference in the adoption and execution of institutional policies and practices.” Bell v. Wolfish, 441 U.S. at 457, 99 S.Ct. at 1878. “Conditions that are restrictive and even harsh are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399. The Constitution does not mandate comfortable prisons. 452 U.S. at 349, 101 S.Ct. at 2400.

In the present case, after taking the complaint as true and construing the pleadings liberally because of the plaintiff’s pro se status, it is clear that Mr. Boland has failed to state a claim upon which relief can be granted. Plaintiff has not alleged that he was denied access to bathroom facilities, but simply that he did not have them in his cell, and was required to wait his turn. The conditions at the SHU do not reach the standard set by the eighth amendment as conduct that “shocks the conscience.” In short, the inconvenience of not having bathroom facilities in plaintiff’s cell does not violate the eighth amendment proscriptions against conditions which “shock the conscience,” are “barbarous,” or “result in a deprivation of the minimal civilized measures of life’s necessities.” Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399; Bell v. Coughlin, 757 F.2d at 35. The conditions at the Long Island Correctional Facility, while certainly not optimal, did not cause genuine deprivation, hardship, or suffering over an extended period of time. Therefore, defendant’s motion to dismiss for failure to state a claim will be granted.

The Clerk of the Court is directed to enter judgment in favor of the defendants.

SO ORDERED.