SUPREME COURT, U.S. WASHINGTON, D.C. 20543 OFFICIAL TRANSCRIPT PROCEEDINGS BEFORE THE SUPREME COURT OF THE UNITED STATES DKT/CASE NO. 84 648 SEDIMA, S.P.R.L., Petitioner V. IMREX COMPANY, INC TITLE ET AL. PLACE Washington, D. C. DATE April 17, 1985 PAGES 1 47 (202) 628-9300 ?0 E STREET. N.W. 1 IS THE SUPREME COURT OF THE UNITED STATES 2 ------ - - -- -- -- -- - -x 3 SEDIMA, S. P. R. L., s 4 Petitioner : 5 v. 4 So. 84-648 6 IMREX COMPANY, INC., ET AL. ; 7 ---------------- - -x 8 Washington, D.C. 9 Wednesday, April 17, 1985 10 The above-entitled matter came on for oral 11 argument before the Supreme Court of the United States 12 at 10458 o'clock, a. m . 13 14 APPEARANCES; 15 FRANKLYN H. SNITOW, ESQ., New York, N.Y.; on behalf 16 of Petitioner. 17 RICHARD JORDAN EISENBERG, ESQ., Garden City, N.Y.; 18 on behalf of Respondents. 19 20 21 22 23 24 25 1 ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 C 0 N T | I T S 2 ORAL ARGUMENT CF PAGE 3 FRANKLYN H. SNITOW, ESQ., 4 on behalf of the Petitioner 3 5 RICHARD JORDAN RISENBERG, ESQ., 6 on behalf of the Respondents 22 7 FRANKLYN H. SNITOW, ESQ., 8 on behalf of the Petitioner - rebuttal 45 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 PROCEEDINGS 2 CHIEF JUSTICE BURGERs Ws will hear arguments 3 next in Seiima v. Imrex. Nr. Snitow , you may proceed I 4 think whenever you’re ready. 5 ORAL ARGUMENT OF FRANKLYN H. SNITOW, ESQ. 6 ON BEHALF OF THE PETITIONER 7 MR. SNITOW: Mr. Chief Justice, and may it 8 please the Court* 9 The matter before the Court today arises out 10 of the district court’s dismissal of Plaintiff's claim 11 under the Racketeer Influence and Corrupt Organization 12 Act, more commonly known as RICO, 18 U.S.C. 1961 through 13 *58. The district court. Judge Glasser, dismissed the 14 RICO claim on the grounds that no allegation of 15 RICQ-type injury apart from that which would occur as a 16 result of the predicate acts had been pleaded. 17 The Court of Appeals for the Second Circuit 18 held that there must be a mobster type injury and added, 19 without our having the opportunity to previously brief 20 the issue, that there must be a predicate conviction of 21 either a predicate act or a RICO conviction. 22 I suggest to the Court that if the Court of 23 Appeals’ position is upheld, then the RICO statute will 24 be for all intents and purposes no longer a viable tool 25 in the fight against systematic organized criminal 3 ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 activity. And I suggest to the Court that the very 2 language of the statute clearly permits the type of 3 claim that was before the district court in this case. 4 Upon review of the Second Circuit's opinions 5 and the various briefs which have been submitted to this 6 Court, what is most striking, I believe, is the creation 7 of artificial roadblocks that have to be read into the 8 statute in order to uphold the Second Circuit's 9 decision. 10 I respectfully suggest that the reading of 11 these artificial roadblocks into the statute has a much 12 greater effect than simply the question of whether 13 Plaintiff's counsel -- whether there will be a bar of 14 RICO Plaintiff's counsel, or whether the dockets will be 15 overcrowded. I think those issues were decided by this 16 Court in the Turkette decision, where the Court 17 recognized that if Congress has the power to cast this 18 kind of legislation we cannot in fact end the 19 legislation, we cannot end this type of claim, because 20 of concern for dockets. 21 I think that what is at issue here is not only 22 the integrity cf the legislative process, where courts 23 engraft different conditions precedent that aren't found l 24 actually in the statute. That type of expansionism I 25 suggest to the Court is not proper. 4 ALJERSON REPORTING COMPANY, INC. 20 f ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 More importantly and I think the Haroco 2 decision alludes to this — I think if this Court reads 3 into the statute that which the Second Circuit read into 4 the statute, we will create a certain disrespect for 5 law. We will create status defendants, either by ethnic 6 origin as suggested by Justice Cardalone, Judge 7 Cardalone, or by class. Traditionally, I think that's 8 improper and I think that’s been rejected by the 9 courts. 10 Sore importantly. Your Honors, in terms of the 11 public perception of this type of criminality, where we 12 create two classes, where we recognize that where an 13 enterprise is operated through a pattern of 14 racketeering, but suggest that if certain people don’t 15 fit into classical groups — La Cos Nostra, Mafia — if 16 that’s not the class, then you are immune, then you are 17 not subject to this particular type of statutory 18 scheme. 19 QUESTION* What effect do you suggest this 20 would have on the criminal prosecutions under the 21 racketeering statute? 22 MR. SNITOWs I think that the effect would be 23 that criminal prosecutors would be subject to placing 24 witnesses on the stand whom defense counsel could say 25 would be interested, and their sole interest would be 5 ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 creating the predicate for later civil prosecution. It 2 adds an extra burden to prosecutors being able to place 3 witnesses on the stand, who traditionally have very 4 little or do not have any legal stake in the outcome of 5 particular litigation. 6 I mentioned the Haroco decision, Your Honor, 7 fit the end of the decision, the court says that if we 8 felt that public policy was at stake here, if we felt 9 that there was some larger good to the Republic that had 10 to be served here, then we might engage in the kind of 11 pruning that the Second Circuit engaged in. Eut that’s 12 not the case. 13 I submit. Your Honor, as a former prosecutor 14 that I have seen persons who have been defendants in 15 criminal actions, who have been granted the iargesse of 16 our laws in having evidence suppressed, honestly believe 17 and create the impression that they were innocent as a 18 matter of fact, rather than having been able to take 19 advantage of procedural safeguards. 20 I suggest that’s exactly what happens in this 21 Court, and the danger to lawyers who trivialize and 22 believe that they can say to a court that the type of 23 facts that are represented here are merely a routine 24 commercial dispute — that’s what's suggested by the 25 Respondents here, that this is a routine commercial 6 ALDERSON REPORTING COMPANY, INC. 20 f ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 dispute 2 In footnote 3 of the brief, they suggest to 3 the Court that in fact there was only a technical 4 violation. If you look at that footnote, curiously, 5 they have failed to say that when the Defandant was 6 convicted of a crime by a Nassau County grand jury, they 7 failed to suggest what particular statute they were 8 convicted under. 9 The statute under New York penal lav was 10 Section 175.10, which is a felony, for which a $50,000 11 fine was collected, and which involves the falsification 12 of business records for the purposes of another crime, 13 in this case larceny. There was no technical 14 violation. This was not a mere business dispute. 15 QUESTIONS Well, counsel, it could well be 16 that that’s true here. But of course, the holding that 17 we will make will govern many other cases as well. And 18 I guess it*s possible in your view that a single 19 technical violation of the Securities Act, coupled with 20 a single mailing, with then be mail fraud or mailing 21 statutes would suffice for the pattern of activity and 22 bring the violator under the civil PICO provisions. 23 NR. SNITOWs Your Honor, I believe that 24 Congress recognized that in order to cast a wide net and 25 in order to avoid loopholes in terms of status, they 7 ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 would have to create a statute which set up minimums. 2 And yes, if there were two predicate acts committed 3 within a ten-year period, someone could be accused of a 4 RICO violation . 5 Whether that RICO violation would ultimately 6 be proven at trial, whether a jury or a tryer of fact 7 would accept that as a racketeering type injury, is 8 another question. I think that the — 9 QUESTIONS Eut if that technically met the 10 statutory requirement under the Securities Act and 11 Mailing Act, although it was a single transaction, would 12 that be a pattern? 13 MR.