Now before the court are both defendants' pretrial motions which raise substantial questions about the theories underlying this prosecution and the correct interpretation of several important federal criminal statutes. In addition to threats against student-athletes, the indictment charges that at least one of Norby Walters Associates' potential entertainment clients — the group known as the "Jackson Five" — was threatened with force if the group did not retain Norby Walters Associates as booking agent. The defendants are accused of agreeing to violate RICO Section 1962(c) by conducting and participating in the conduct of the affairs of Norby Walters Associates and WSE through a pattern of racketeering activity consisting of: multiple acts of extortion and attempted extortion; multiple acts of collection of extensions of credit by extortionate means; multiple acts of mail fraud; multiple acts of wire fraud; and multiple acts of the use of interstate facilities in furtherance of unlawful activity. In performing this role, its actions widen consumer choice—not only the choices available to sports fans but also those available to athletes—and hence can be viewed as procompetitive. See Mc Cormack, supra, 845 F.2d at 1345; Justice v. Pursuant to the scheme, a de facto state official received portions of commissions which were paid by the commonwealth's insurers to an intermediary insurance company which presumably arranged the coverage. The Court characterized the right to honest government as an "intangible right" which was not protected by the federal mail fraud statute. The Supreme Court further clarified the contours of the new mail fraud "money or property" requirement in Carpenter v. In the court's view, this indictment does not run aground on Mc Nally. Pa.1988), the court rejected a defense argument that the payment of salaries and benefits to police officers did not constitute a deprivation of property because the victim city would have paid the salaries in any event. There, the government alleges that the universities were defrauded of their "right to control" allocation of their limited number of athletic scholarships. In the court's view, that the universities are limited by amateur competition regulations in the number of football players to whom they can distribute their property does not create any additional property right. Bloom argues that he is prejudiced by the improper enterprise allegation because the enterprise ties Bloom to unrelated organized crime activities of Norby Walters Associates during the period 1981-1984. Bloom's argument that he is prejudiced by this particular enterprise allegation is novel. Paragraph 27 of Count I and paragraphs 12-14 of Count VII contain the government's Hobbs Act allegations. Although the Seventh Circuit has never had occasion to apply this aspect of Enmons, every circuit court to interpret Enmons has limited the case to situations where there is a clear congressional intent that the Hobbs Act not apply. Agnes, 753 F.2d 293, 299 (3d Cir.1985) (listing cases). This court adopts the reasoning in Agnes and declines to recognize a claim of right defense. There the court reversed a Hobbs Act conviction based on defendants' extortion of ,000 from an individual seeking an electrician's license because it found that the extortion of the individual failed to affect commerce. Thus "the act reaches conduct where the effect on interstate commerce is slight and where there is no actual effect proved but there is a realistic probability of an effect." Id.
After careful consideration, the court denies defendants' motions for the reasons set out below. Defendants are further charged with taking money from one student-athlete, Paul Palmer, on the pretext that the money would be invested on his behalf, and thereafter using the money to pay some of defendant Bloom's personal expenses. Count Two charges the substantive offense of mail fraud. According to the Court: The violation asserted is the failure to disclose [defendant's] financial interest [i.e., in receiving the insurance commissions], even if state law did not require it, to other persons in the state government whose actions could have been affected by the disclosure. The property deprivation alleged in ¶ 22(a) consists of tangible money and property in the form of scholarship money and room, board, tuition waivers and fees. In Thomas, defendants were charged with a scheme to rig police entrance exams to secure appointment for favored candidates to positions as patrolmen. Intuitively, it is difficult to separate the tangible property of the scholarships from the intangible property right to control allocation or disposition of the scholarships. In any event, the defendants are not prejudiced by the overlap between ¶ 22(a) and ¶ 22(b). Wellman, 830 F.2d 1453 (7th Cir.1987), the indictment similarly charged two overlapping property deprivations. The defendant argued, as do defendants in this case, that because there were no allegations that the bank suffered a pecuniary loss from the loans, i.e., that the loans were bad, there was no fraud. Following Carpenter, the district court held that the victim-bank did not have to suffer pecuniary loss on the loans; it was enough that the bank's intangible property right to exclusive control of its money was violated. Holzer, 816 F.2d 304, 309 (7th Cir.), vacated on other grounds, ___ U. According to the Seventh Circuit, "the central element of an enterprise is structure." United States v. When an enterprise is also a legal entity, structure is easy to find. Based on the intended broad sweep of the RICO statute, see Neapolitan, supra, 791 F.2d at 495 ("the Supreme Court has consistently adhered to a broad, literal reading of the statute"), the court finds that a defendant who later joins an enterprise can be linked to the enterprise's previous predicate acts. Stern, 858 F.2d 1241 (7th Cir.1988) (One conspiracy not two charged in operation of ongoing prostitution RICO enterprise although one conspirator joined at a later date). In essence, they charge that defendants conspired to commit and did commit extortion by threatening three student-athletes with physical harm, and one student-athlete with harm to his reputation, if they did not honor their representation agreements with WSE. Enmons itself concerned a labor dispute; the Court found that the Hobbs Act was not intended to cover cases of strike violence. Bloom also argues that the indictment fails to establish that the extortionate activity affected or interfered with interstate commerce. It is well established that the Hobbs Act reaches to the limits of the commerce clause. The present indictment pleads at least a realistic probability of an effect on interstate commerce.
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In addition to the conduct outlined above, the government charges that in some cases the defendants threatened student-athletes with physical harm if the student-athletes tried to withdraw from the contractual relationship with defendants. On the other hand, mailings made to promote the scheme, or which relate to the acceptance of the proceeds of the scheme, or which facilitate concealment of the scheme, have been found to have been in furtherance of the scheme under this definition. Such an occurrence could seriously affect a particular athlete's value to defendants. And the integrity of the "product" cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed. each of these regulations represents a desirable and legitimate attempt "to keep university athletics from being professionalized to the extent that profit making objectives would overshadow educational objectives." Id. The Mc Cormack court found the fact that the NCAA permits some compensation through scholarships does not undermine the rationality of the eligibility requirements: That the NCAA has not distilled amateurism to its purest form does not mean its attempts to maintain a mixture containing some amateur elements are unreasonable. Bloom cites several cases to support his argument that "similar restrictions limiting the right of athletes to receive compensation in a competitive market have been held illegal." Defendant Bloom's Motion to Dismiss the Indictment on Antitrust Grounds, p. All these cases are distinguishable because they involve professional leagues, not college football. We find, based upon Board of Regents and Mc Cormack, that the NCAA's eligibility rules, on their face, do not violate the federal antitrust laws. In Mc Nally Defendants argue here that the universities were not defrauded of money or property. money and property in the form of tuition, room, board, fees, and other financial assistance provided to student-athletes on the basis of false certifications submitted to the student-athlete's school; and(b) ... The universities need not experience a net financial loss to qualify them as mail fraud victims. Evans, 844 F.2d 36, 40-42 (2d Cir.1988) (discussing role of common law definitions of property in defining property for purpose of mail fraud statute). Defendants seek dismissal of the two conspiracy counts, Counts I and VI, on the ground that each count improperly alleges multiple conspiracies. The jury will determine whether the government has proven the single agreement. Bloom moves for dismissal of the two RICO counts, Counts I and VII, on the ground that the RICO enterprise allegation is deficient. Bloom points out that the indictment alleges WSE was not organized until 1984. Indeed, the essential structure of the business seems not to have changed significantly through the addition of WSE: WSE had no offices, bank accounts, telephones, or employees of its own, it operated its business as part of Norby Walters Associates.But what really needs to be considered when exploring a solution? Defendants Norby Walters ("Walters") and Lloyd Bloom ("Bloom") are charged in a seven-count indictment with several crimes, including racketeering, extortion, and mail and wire fraud, in connection with their activities as business agents for certain sports and entertainment figures. An unindicted third party, Michael Franzese, allegedly a member of an organized crime family, assisted defendants in obtaining and retaining clients through threats of force. See e.g., Superseding Indictment, Count I, ¶ 25(b)(2)-(5). Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. We therefore conclude that the plaintiffs cannot prove any set of facts that would carry their antitrust claim and that the motion to dismiss was properly granted. As the Supreme Court in Board of Regents, supra, observed: "[t]he identification of this `product' [college football] with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable...." 468 U. As such, enforcement of those rules and regulations does not constitute an illegal boycott, contrary to Bloom's assertion. Mc Nally involved several individuals who were convicted of mail fraud based on their participation in a self-dealing patronage scheme which allegedly defrauded the citizens and government of Kentucky of certain "intangible rights," such as the right to have the commonwealth's affairs conducted honestly. The Court held that the victims, the citizens and government of Kentucky, were not deprived of "money or property" by this scheme. [the universities'] right to control the allocation of a limited number of athletic scholarships to student athletes who the universities considered to be eligible, under the rules and regulations adopted by the university, to compete and represent the school in intercollegiate football and to receive an athletic scholarship in that sport. The indictment alleges a second type of property deprivation in ¶ 22(b). It follows that the property right identified in ¶ 22(b) is but one property right already encompassed by the bundle of property rights represented by allegation (a). A RICO "enterprise" is defined as "any individual, partnership, corporation, association or legal entity, and any union or group of individuals associated in fact although not a legal entity...." 18 U. Thus, Bloom argues, WSE could not have been associated in fact with Norby Walters Associates as a RICO enterprise from 1981 through 1984, four of the seven years during which the enterprise allegedly operated. The government has adequately pled a RICO enterprise. Ed.2d 379 (1973), where the Supreme Court arguably recognized such a defense.California Family Code Section 3020 (a) states, 3020.In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.