                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                                                         U.S. COURT OF APPEALS
                       ________________________            ELEVENTH CIRCUIT
                                                               JUNE 29 2000
                                                            THOMAS K. KAHN
                              No. 97-6163                        CLERK
                       ________________________

                     D. C. Docket No. 95-00158-CR-5

UNITED STATES OF AMERICA,
                                                                Plaintiff-Appellee,

                                   versus

GOLDIN INDUSTRIES, INC.,
GOLDIN OF ALABAMA INC., et al.,
                                                        Defendants-Appellants.

                       ________________________

                Appeals from the United States District Court
                   for the Southern District of Alabama
                      _________________________
                              (June 29, 2000)

Before ANDERSON, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA,
BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

BARKETT, Circuit Judge:
        Goldin Industries, Inc. (“Goldin Mississippi”1), Goldin of Alabama, Inc.

(“Goldin Alabama”), and Goldin Industries Louisiana, Inc. (“Goldin Louisiana”)

(collectively “the Goldin Corporations”), appeal their convictions for racketeering

activities in violation of the Racketeer Influenced and Corrupt Organizations Statute

(“RICO”), 18 U.S.C. § 1962(c), and conspiracy to engage in such activities in

violation of RICO § 1962(d). The Goldin Corporations also appeal from the Final

Judgment of Forfeiture and Order mandating restitution under 18 U.S.C. § 1963(a)(1)

and (a)(3) of all proceeds obtained from the racketeering activity.

       The indictment against the Goldin Corporations under § 1962(c) alleges an

“enterprise as defined in Title 18, U.S.C. § 1961(4), consisting of Martin C. Goldin,

Steven L. Goldin, Jack Goldin, Goldin-Mississippi, Goldin-Alabama, Goldin-

Louisiana, Alan H. Goldin” and others. It further names the same parties, except for

Alan H. Goldin, as “persons employed by and associated with the enterprise as

described above. . . .” The individual defendants were acquitted.

       On appeal, the Goldin Corporations first argue that the RICO convictions must

be reversed because the unambiguous language of § 1962(c) requires that the RICO

“person” prosecuted under the statute be separate and distinct from the RICO


   1
     Throughout the indictment and in proceedings in the District Court, Goldin Industries, Inc. is
referred to as Goldin Mississippi. In order to avoid confusion, we also refer to that corporation as
Goldin Mississippi.

                                                 2
“enterprise” which has its affairs conducted through a pattern of racketeering activity.

The Goldin Corporations make this argument notwithstanding a prior opinion of this

court holding to the contrary. United States v. Hartley, 678 F.2d 961, 988 (11th Cir.

1982). Both parties conceded in their briefs and at oral argument that this argument

is foreclosed if Hartley has continued viability. The Goldin Corporations argue that

Hartley was wrongly decided and should be revisited. Because a panel of this court

cannot reconsider a decision of another panel,2 we now reconsider United States v.

Hartley en banc.

                                         DISCUSSION

       18 U.S.C. § 1962(c) provides:

                      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.

In Hartley, as the first appellate court to address this question, this Court held that a

corporation may be simultaneously named as a liable “person” and as the “enterprise”

in § 1962(c) actions. After Hartley was decided, every other circuit had the



   2
     See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“It is the firmly established
rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address
an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.”).

                                                 3
opportunity to address the question and unanimously held, contrary to Hartley, that

the defendant named in a § 1962(c) indictment must be separate and distinct from the

“enterprise” named therein. See Yellow Bus Lines, Inc. v. Drivers, Chauffeurs &

Helpers Local Union 639, 883 F.2d 132 (D.C. Cir. 1989), rev’d in part on other

grounds, 919 F.2d 948 (D.C. Cir. 1990) (en banc); Puckett v. Tenn. Eastman Co., 889

F.2d 1481 (6th Cir. 1989); Garbade v. Great Divide Mining and Milling Corp., 831

F.2d 212 (10th Cir. 1987); Bishop v. Corbitt Marine Ways, Inc., 802 F.2d 122 (5th

Cir. 1986); Schofield v. First Commodity Corp., 793 F.2d 28 (1st Cir. 1986); Bennett

v. United States Trust Co. of New York, 770 F.2d 308 (2nd Cir. 1985); B.F. Hirsch

v. Enright Refining Co., Inc., 751 F.2d 628 (3rd Cir. 1984); Haroco, Inc. v. American

Nat’l Bank and Trust Co. of Chicago, 747 F.2d 384 (7th Cir. 1984), aff’d on other

grounds, 473 U.S. 606 (1985); Rae v. Union Bank, 725 F.2d 478 (9th Cir. 1984);

United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir. 1982), overruled

in part, Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir. 1990) (the Fourth

Circuit, deciding this issue en banc, upheld Computer Sciences’ holding with regard

to § 1962(c) but overruled Computer Sciences’ similar finding that an indictment

under § 1962(a) requires that the RICO defendant be separate and distinct from the

RICO enterprise); Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982).




                                         4
      These courts have reasoned that the plain language of § 1962(c) envisions two

separate entities, which comports with legislative intent and policy. The rule adopted

by our sister circuits reflects Congress’ intention in § 1962(c) to target a specific

variety of criminal activity, “the exploitation and appropriation of legitimate

businesses by corrupt individuals.” Yellow Bus Lines, 883 F.3d at 139 (citing S. Rep.

No. 617, 91st Cong., 1st Sess. 76-78 (1969), U.S. Code Cong. & Admin News 1970,

p. 4007). The distinction between the RICO person and the RICO enterprise is

necessary because the enterprise itself can be a passive instrument or victim of the

racketeering activity. See Bennett, 770 F.2d at 315 (“Such a distinction focuses the

section on the culpable party and recognizes that the enterprise itself is often a passive

instrument or victim of the racketeering activity.”).

      On appeal, the Goldin Corporations argued that Hartley should be reconsidered

by the en banc court and reversed. The government asserts that we cannot consider

this argument because Goldin’s objection to the indictment was raised for the first

time on appeal. However, whether a statute prohibits the charged conduct may be

considered de novo even if the issue is raised for the first time on appeal. See United

States v. Tomeny, 144 F.3d 749, 750 (11th Cir. 1998).

      After oral argument before a panel of this court, the parties were requested to

file briefs solely on the issue of whether Hartley was correctly decided. In its


                                            5
supplemental brief, the Government concedes that Hartley was wrongly decided. We

now agree with our sister circuits that, for the purposes of 18 U.S.C. § 1962(c), the

indictment must name a RICO person distinct from the RICO enterprise. The plain

language of the statute requires that the entities be distinct. Having decided that

United States v. Hartley is no longer the law of this Circuit, we remand to the original

panel in this case all other matters to be resolved in this appeal.

      REMANDED TO THE PANEL.




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