#### UNITED STATES of America, Plaintiff-Appellee, v. Evan CALLANAN, Jr.; Evan Callanan, Sr., Defendants-Appellants.

No. 86-1140.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 17, 1986.

Decided Jan. 23, 1987.

Merritt, Circuit Judge, dissented and filed opinion.

Nicholas Smith, Southfield, Mich., Thomas Wilhelm (argued) for defendants-appellants.

*545Juanita Temple, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before MERRITT and WELLFORD, Circuit Judges, and EDWARDS, Senior Circuit Judge.

WELLFORD, Circuit Judge.

This case concerns an appeal from the decision of the district court following a remand this court issued in *United States v. Qaoud,*777 F.2d 1105 (6th Cir.1985).

The underlying facts of this case are set out fully in *Qaoud. See*777 F.2d at 1107-10. For the purposes of this appeal we recite only the pertinent facts that defendants Evan Callanan, Jr. and Evan Callanan, Sr. were convicted by a jury, and this court affirmed the convictions under 18 U.S.C. §§ 1962(c) and 1962(d) of conspiracy to violate RICO and of violating a substantive provision of RICO. Callanan, Jr. received concurrent sentences of eight years each on the RICO charges and five years on other charges. Callanan, Sr. received concurrent sentences of ten years each on the RICO charges and five years on a mail fraud charge. *Id.*at 1108.

In *Qaoud,*this court remanded the case to the district court for the limited pujóse of determining whether the concurrent RICO sentences should be vacated in light of *Ball v. United States,*470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). On remand, Judge Gilmore ruled from the bench that *Ball*did not require the sentences in question to be vacated. The sole issue, therefore, is whether the concurrent sentences in this case for conspiracy and substantive charges under RICO are permissible.

In *Ball v. United States,*the Supreme Court addressed the issue whether concurrent sentences were permissible for convictions under two federal statutes that proscribed receiving and possessing a firearm shipped in interstate commerce. *See*470 U.S. at 857, 105 S.Ct. at 1669. The Court’s analysis focused on whether Congress intended a defendant’s conduct to be punishable under both provisions. *See id.*at 861, 105 S.Ct. at 1671. To ascertain Congress’ intent, the Court applied the test announced in *Blockburger v. United States,*284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): “whether each provision requires proof of a fact which the other does not.” 470 U.S. at 861, 105 S.Ct. at 1671. *See also United States v. Woodward,*469 U.S. 105,107,105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); *Albemaz v. United States,*450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). The Court in *Ball*determined that proof of illegal receipt necessarily includes proof of illegal possession. 470 U.S. at 862, 105 S.Ct. at 1672. The Court also examined the legislative history and concluded that the provisions were not “directed to separate evils.” *Id.*at 864, 105 S.Ct. at 1673. The *Blockburger*test and the statutes’ legislative history thus convinced the Court that Congress did not intend duplicative punishment under these two provisions. *Id.*at 865, 105 S.Ct. at 1673.

Under *Ball,*therefore, we must first consider whether the different provisions of the statutes at issue in this case require proof of a fact which the other does not. We agree with Judge Gilmore’s determination that the conspiracy and substantive offense charges do require different proofs. The substantive RICO charge requires proof that defendants engaged in an enterprise that affected interstate commerce and that they committed two or more racketeering offenses. *See*18 U.S.C. § 1962(c);1
      *United States v. Sutton,*642 F.2d 1001, 1008 (6th Cir.1980), *cert. denied sub nom. Elkins v. United States,*453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (1981). These elements need not be proved to establish the offense of a criminal conspiracy. *546Similarly, the conspiracy charge requires proof of an *agreement*to engage in conduct that would establish a substantive RICO charge, *see*18 U.S.C. § 1962(d); *Sutton,*642 F.2d at 1017, which need not be proved to establish the substantive charge. The statutory definition of the § 1962(c) RICO offense does not contain an element of agreement. The definitions of “racketeering activity” and “pattern of racketeering activity,” components of § 1962(c), moreover, do not incorporate any element of agreement. *See*18 U.S.C. § 1961(1), (5). The *Blockburger*test, therefore, indicates that concurrent sentences are permissible in this case. *See also United States v. Castellano,*610 F.Supp. 1359, 1394-96 (S.D.N.Y.1985) (§§ 1962(c) and (d) are separate offenses under *Blockburger*test).

In addition to applying the *Blockburger*test, the *Ball*Court considered legislative history in determining congressional intent. *See also United States v. Woodward,*469 U.S. 105, 108-09, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); *United States v. Sutton,*700 F.2d 1078, 1080 (6th Cir.1983) (appeal after remand, hereinafter *“Sutton II”)*(“Congressional intent is discerned through statutory language, legislative history, and the *Blockburger*rule.”) In discussing RICO’s purposes, the *Sutton II*court first quoted a portion of the legislative history as follows:

> It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence gathering process, by establishing new penal prohibitions, and *by providing enhanced sanctions*and new remedies to deal with the unlawful activities of those engaged in organized crime.

700 F.2d at 1080-81 (quoting Organized Crime Control Act of 1970, Statement of Findings and Purpose, 84 Stat. 922-923, reprinted in [1970] U.S.Code Cong. & Admin.News, p. 1073) (emphasis added). The Court also noted that section 904 of the same law elaborated: “(a) The provisions of this title shall be liberally construed to effectuate its remedial purposes.” *Id.*at 1081. From this background the court determined:

> The clear legislative intent expressed concurrently with the enactment of RICO is to permit, perhaps even to encourage, courts to impose cumulative sentences for RICO offenses and the underlying crimes. Cumulative sentences are the “enhanced sanctions” which Congress deemed necessary to treat the spreading disease of organized crime. In fact, if cumulative convictions and sentences were disallowed by courts, Congress’ purpose to eradicate organized crime would be thwarted because the RICO penalties are in many cases lighter than penalties for underlying offenses.

700 F.2d at 1081. *See also United States v. Rone,*598 F.2d 564, 571-72 (9th Cir. 1979), *cert. denied sub nom. Little v. United States,*445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980) (Congress’ purposes thwarted unless sentences for RICO charge and predicate offense allowed to run consecutively).

Although *Sutton II*and *Rone*specifically addressed the question of consecutive sentences for a RICO charge and a predicate offense, Congress’ express purposes in enacting RICO suggest the same conclusion in this case concerning conspiracy to violate and actual violation of RICO proscriptions. Indeed, the Supreme Court has found in a comparable situation that “Congress intended to retain each offense as an ‘independent curb’ available for use in the strategy against organized crime.” *Ian-nelli v. United States,*420 U.S. 770, 791, 95 S.Ct. 1284, 1296, 43 L.Ed.2d 616 (1975). Although *Iannelli*concerned conspiracy to violate and violation of a gambling provision under the Organized Crime Control Act of 1970, 18 U.S.C. §§ 371, 1955, we believe that the principle asserted in *Ian-nelli*is equally applicable to this case. The legislative history indicates that Congress intended that conspiracy to violate RICO and the acts involved in violation of the substantive RICO provision be separate offenses that do not merge for sentencing purposes.

*547Finally, Congress’ intent to allow punishment under both §§ 1962(c) and 1962(d) is shown by the fact that the two provisions are “directed to separate evils.” *See United States v. Woodward,*469 U.S. 105, 109, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985); *cf. Ball v. United States,*470 U.S. at 864, 105 S.Ct. at 1673 (considering the “separate evils” question but finding no separate evils in the statutes at issue). “The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish.” *Iannelli,*420 U.S. at 779, 95 S.Ct. at 1290 (quoting *Dennis v. United States,*341 U.S. 494, 573, 71 S.Ct. 857, 899, 95 L.Ed. 1137 (1951) (Jackson, J., concurring)). By enacting a provision proscribing conspiracy to violate RICO, Congress addressed an evil separate and independent of the substantive § 1962(c) provision. *United States v. Ohlson,*552 F.2d 1347, 1349 (9th Gir.1977); *United States v. Castella-no,*610 F.Supp. 1359, 1393 (S.D.N.Y.1985). Because sections 1962(c) and 1962(d) are “directed to separate evils,” we conclude that Congress intended to permit concurrent sentences for conspiracy to violate RICO and substantive RICO violations.

The dissent has focused on the underlying activity in this case, bribery, which is one of the alternative “racketeering activities” defined in section 1961. *See*18 U.S.C. § 1961(1). The dissent relies on *Whalen v. United States,*445 U.S. 684,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and *Pandelli v. United States,*635 F.2d 533 (6th Cir.1980), which indicate that courts must look to the specific offense at issue in a case concerning a statute with alternative elements. The dissent emphasizes the nature of a bribe as inherently including an agreement and argues that the conspiracy to fix cases, therefore, must be a lesser included offense of bribery. Focus on the nature of a bribe transaction, however, is misplaced. Section 1962(c) prohibits a *“pattern*of racketeering activity,” and proof of a *pattern*of bribes was the basis of defendants’ convictions. A pattern of racketeering activity, which by definition requires at least two acts, *see*18 U.S.C. § 1961(5), is different from an isolated bribe or “agreement” to fix a case. Relying on *Whalen*and *Pandelli*to focus on bribery, therefore, is inappropriate in this case. The conspiracy conviction in this case was based on the agreement to conduct a pattern of racketeering activity, not a mere agreement inherent in the offer and acceptance of an isolated bribe. The conspiracy conviction, therefore, required proof of an element not required to prove the substantive charge, and the two offenses are not the “same offense” under *Blockburger.*

Even if we were to focus on the bribery element, however, this court has rejected the argument that conspiracy is a lesser included offense of bribery. *See United States v. Finazzo,*704 F.2d 300, 305 (6th Cir.), *cert. denied,*463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). The defendants in *Finazzo*argued that the very same agreement shown to prove bribery also proved conspiracy. That argument mistakenly focused on the evidence submitted at trial; the relevant inquiry examines the proof necessary to establish the statutory elements. *Id.*(citing *Iannelli v. United States,*420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)). *See also Pryor v. Rose,*724 F.2d 525, 529 (6th Cir.1984) (en banc). The *Finazzo*court then determined that because the bribery and conspiracy offenses each required “ ‘proof of a fact the other does not,’ the *Blockburger*test is satisfied.” 704 F.2d at 305. Even focusing on bribery, therefore, does not avoid the conclusion that the conspiracy and substantive offenses are not the same under *Blockburger.*

We disagree with the dissent’s position, set out in footnote 1, that the “historical *Blockburger*analysis” has been “rejected” by the Supreme Court. In *Missouri v. Hunter,*459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Chief Justice stated:

> In *Whalen v. United States, supra,*we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was *548contrary to federal statutory and constitutional law. A divided court relied on *Blockburger v. United States,*284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932), in holding that the two statutes in controversy proscribed the “same” offense.

> The opinion in *Blockburger*stated:

> “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” *Id.,*at 304, 52 S.Ct. at 182.

> In *Whalen*we also noted that *Block-burger*established a rule of statutory construction____

*Id.*at 366, 103 S.Ct. at 678. Again, Chief Justice Burger referred to a later case which quoted from, and adhered to, the *Blockburger*rule:

> In *Albemaz v. United States,*450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), we addressed the issue whether a defendant could be cumulatively punished in a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana. There, in contrast to *Whalen,*we concluded that the two statutes did not proscribe the “same” offense in the sense that “ ‘each provision requires proof of a fact [that] the other does not.’ ” 450 U.S., at 339,101 S.Ct. at 1142, quoting *Blockburger, supra,*at 304, 52 S.Ct. at 182.

*Missouri v. Hunter,*459 U.S. at 367, 103 S.Ct. at 678.

Finally, the relationship of *Albemaz*and *Whalen,*445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1983), with *Blockburger*is set out:

> Our analysis and reasoning in *Whalen*and *Albemaz*lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the *Block-burger*test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in *Whalen*is not a constitutional rule requiring courts to negate clearly expressed legislative intent.

*Missouri v. Hunter,*459 U.S. at 368, 103 S.Ct. at 679.

We have noted the importance of legislative intent, as evidenced in *Iannelli, Whalen, Albemaz,*and *Hunter,*that indicates in the instant case that the two statutory proscriptions in controversy are directed to separate evils and are essentially separate offenses. This conclusion is entirely consistent with our analysis and adherence to “the test articulated by the Supreme Court in *Blockburger,”*as set out in *Finazzo,*704 F.2d at 305. In short, recent cases such as *Ball, Hunter,*and *Finazzo*clearly indicate that although *Whalen*and *Pandelli*require courts to focus on the particular offense at issue under a statute with alternative elements, the *Blockburger*test has not been rejected by the Supreme Court or this court. Because the *Whalen*and *Pandelli*approach is inapt in this case, a straightforward application of *Blockburger*is appropriate.

Both the *Blockburger*test and our independent evaluation of congressional purpose indicate that the concurrent sentences in this case are permissible. Accordingly, we AFFIRM the decision that the concurrent sentences imposed on the Callanans are valid.

. Section 1962(c) provides:

> (c) 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.

18 U.S.C. § 1962(c).

MERRITT, Circuit Judge,

dissenting.

The issue presented- by this appeal is whether the substantive and conspiracy RICO offenses are the same, thus making separate punishments impermissible under the Double Jeopardy Clause of the United States Constitution. Unlike the majority, I find that under the facts of this case, the offenses are the same, and I therefore dissent.

The RICO enterprise charged and proved in this case is that defendant Evan Calla-nan, Sr.’s judicial office was conducted through a pattern of criminal activity, namely, taking bribes to fix cases. The *549conspiracy charged was the agreement to take money to fix cases. This agreement was essential to the government’s proof on the substantive offense. In order for the defendants charged in the RICO substantive offense to conduct the enterprise in this way they necessarily had to agree to do it. This agreement is the conspiracy offense charged and proved — nothing more, nothing less. The government’s proof on the conspiracy count was an essential element, a lesser included offense, of the substantive offense.

The Double Jeopardy Clause protects against multiple punishments for the same offense. *Ohio v. Johnson,*467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). This protection against cumulative punishments is intended to guarantee that the sentencing discretion of courts is confined to the limits established by the legislature. Thus, the question of whether punishments are multiple “is essentially one of legislative intent.” *See id.*at 499, 104 S.Ct. at2541 (citing *Missouri v. Hunter,*459 U.S. 359, 366-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983)). When legislative intent is unclear, however, the question of whether multiple punishments are permissible is governed by the test established in *Blockburger v. United States,*284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and its progeny. *See Albernaz v. United States,*450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981); *Whalen v. United States,*445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980); *Pandelli v. United States,*635 F.2d 533 (6th Cir.1980). The assumption under the *Blockburger*test is that Congress ordinarily does not intend to punish the same behavior under separate statutes. *Ball v. United States,*470 U.S. 856, 859, 105 S.Ct. 1668, 1670, 84 L.Ed.2d 740 (1985).

There is no evidence of Congressional intent that conspiracy and the underlying substantive offense should be separately punishable in all cases. Although the reach of the RICO statute was clearly intended to be broad, nothing in the legislative history indicates that Congress intended to authorize multiple punishments for substantive and conspiracy offenses where the conspiracy charged is an essential element of the substantive offense. Where actual Congressional intent is unclear, the *Blockburger*standard is applied to determine whether multiple punishments are permissible.

The *Blockburger*test traditionally required that the reviewing court consider the two statutes in the abstract and determine whether each statute “requires proof of a fact that the other does not.” Over time, the *Blockburger*test has been refined, and it is now clear that the requisite statutory elements must be examined from the vantage point of the particular case before the court. *See Whalen v. United States,*445 U.S. at 694, 100 S.Ct. at 1439. This court has held that “[w]hat the reviewing court must now do in applying *Blockburger*is go further and look to the legal theory of the case or the elements of the specific cause of action for which the defendant was convicted without examining the facts in detail.” *Pandelli v. United States,*635 F.2d at 538. *But see United States v. Finazzo,*704 F.2d 300 (6th Cir.1983), which fails to recognize and apply the more refined test developed in *Whalen*and *Pandelli.*
      *1*

*550Applying this standard to the facts of this case, it is clear that the conspiracy is a lesser included offense of the substantive charge. The nature of the offense charged in this case — exacting bribes — necessarily requires an agreement to exact those bribes. This agreement cannot then provide the basis for conviction and punishment for conspiracy, in addition to conviction and punishment for the substantive offense of taking bribes. This agreement was the government’s sole proof of conspiracy in this case, and the government does not deny that the proof on the two charges was identical. *United States v. Qaoud,*777 F.2d 1105, 1118 (6th Cir.1985). For these reasons, I would find that in the context of this case, these offenses are identical and, therefore, separate punishments are impermissible.

The correctness of this result is also suggested by *United States v. Sutton,*642 F.2d 1001 (6th Cir.1980) (en banc). In that case, this court held that where the proof presented for a RICO substantive and conspiracy offense is identical, the conspiracy conviction merges with the substantive offense. The court therefore required concurrent sentences.

In *Ball,*the Supreme Court held that where offenses merge under the *Blockbur-ger*standard it is not sufficient to require concurrent sentences; rather, one of the convictions must be vacated. 470 U.S. at 865, 105 S.Ct. at 1673. The Court reasoned that the separate conviction has potential adverse consequences beyond the mere sentence which are impermissible under the Double Jeopardy Clause. *Id.*

Analyzing *Sutton*and *Ball*together requires vacation of the conspiracy conviction in this case. In *Sutton,*this court held that where the government’s proof is identical, a RICO conspiracy count merges with the substantive offense. In *Ball,*the Supreme Court held that merger requires the vacation of the second conviction. Therefore, the petitioner’s conspiracy conviction should be vacated.

Accordingly, I dissent.

. The fundamental difference between my position and that of the majority is that the majority also relies on the historical *Blockburger*analysis rejected by the Supreme Court in *Whalen*and this court in *Pandelli.*The majority considers whether in the abstract the substantive offense and the conspiracy could require different proofs. After determining theoretically that the RICO conspiracy charge could require proof of an agreement which the RICO substantive offense may not, the majority decides that the *Blockburger*test has been met. This reasoning is incorrect under *Whalen*and *Pandelli Whalen*and *Pandelli*require the court to consider whether the agreement which formed the basis for the conspiracy was, in fact, the same agreement which formed the basis for the enterprise, which was the substantive offense in this case. Applying this analysis, the agreement was the same in this case and therefore multiple punishments are impermissible under the Double Jeopardy Clause.

*553(emphasis supplied). Defendant contends that a law is not state law under 29 U.S.C. § 1144(c)(2) unless it “purports to regulate” a benefit plan.

Other jurisdictions have concluded that a state law is not preempted by ERISA unless it "relates to” and "purports to regulate” a plan. *See, e.g., Martori Bros. Distributors v. James-Massengale,*781 F.2d 1349, 1356-59 (9th Cir.1986); *Rebaldo v. Cuomo,*749 F.2d 133, 137 (2d Cir.1984), *cert. denied,*472 U.S. 1008, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985). Our conclusion that the Akron ordinance does not "relate to” an ERISA plan makes it unnecessary to reach the "purports to regulate” issue. "As a logical matter, if a state law does not 'relate to’ ERISA plans, it cannot 'purport to regulate’ them, for ‘relates’ includes, but is much broader than, ‘purports to regulate.’” *Martori Bros. Distributors,*781 F.2d at 1359.