                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

          GOLDIN INDUSTRIES, INC., Goldin of Alabama Inc., et al., Defendants-Appellants.

                                                No. 97-6163.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               June 29, 2000.

Appeals from the United States District Court for the Southern District of Alabama. (no. 95-00158-CR-5),
Richard W. Vollmer, Jr., Judge.

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.




    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.
        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 "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 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, 913 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);



    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.").

                                                       2
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, 105 S.Ct. 3291, 87 L.Ed.2d 437 (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).

        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.2d 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).




                                                       3
          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 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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