
USCA1 Opinion

	




          March 26, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2260                   STERLING SUFFOLK RACECOURSE LIMITED PARTNERSHIP,                                Plaintiff, Appellant,                                          v.                        BURRILLVILLE RACING ASSOCIATION, INC.,                                 Defendant, Appellee.                              _________________________                                     ERRATA SHEET               The  opinion of this Court issued March 25, 1993, is amended          as follows:                    Remove duplicated "BEFORE" from cover page of opinion.                                       BEFORE          March 25, 1993  [SYSTEMS NOTE:  For version of  this opinion with          the appendix included, please  contact the Clerk's Office, United          States  Court of Appeals for the First  Circuit.  This version of          the opinion DOES NOT contain the appendix.]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2260                   STERLING SUFFOLK RACECOURSE LIMITED PARTNERSHIP,                                Plaintiff, Appellant,                                          v.                        BURRILLVILLE RACING ASSOCIATION, INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                              _________________________                                        Before                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                               _______________________               E. Randolph  Tucker, with whom Michael D. Ricciuti, David B.               ___________________            ___________________  ________          Crevier, Joshua M.  Davis, and Hill  & Barlow were on  brief, for          _______  ________________      ______________          appellant.               Kent E. Mast, with whom Peter J. McGinn, Tillinghast Collins               ____________            _______________  ___________________          & Graham, and Kilpatrick & Cody were on brief, for appellee.          ________      _________________                              _________________________                              _________________________                    SELYA, Circuit Judge.  In this appeal, we confront  two                    SELYA, Circuit Judge.                           _____________          issues of novel  impression at  the appellate level.   First,  we          must determine  whether the Interstate Horseracing  Act (IHA), 15          U.S.C.    3001-3007 (1988), the full text of which is  set out in          the appendix,  contains  an implied  private right  of action  in          favor of  racetracks situated  within sixty  miles  of a  display          track, i.e., a track that accepts  interstate off-track wagers on                 ____          races to be run at distant  tracks and then simulcasts the actual          races.    Second,  we  must  determine  whether  certain  alleged          violations of the IHA comprise a pattern of racketeering activity          falling within the ambit of  the Racketeer Influenced and Corrupt          Organizations Act  (RICO), 18 U.S.C.     1961-1968 (1988  & Supp.          III  1991).  Believing, as we do,  that the court below correctly          answered both inquiries in the negative, we affirm.          I.  AT THE STARTING GATE          I.  AT THE STARTING GATE                    The  relevant facts  are  not in  dispute.   Plaintiff-          appellant   Sterling   Suffolk  Racecourse   Limited  Partnership          (Suffolk) conducts live horseracing at  Suffolk Downs, a track in          the metropolitan Boston area.  Approximately fifty miles away, in          Lincoln,  Rhode  Island,  defendant-appellee Burrillville  Racing          Association, Inc. (Lincoln) operates  a greyhound track  (Lincoln          Greyhound Park)  and an  off-track betting  (OTB) office, see  15                                                                    ___          U.S.C.   3002(8), for, inter alia, accepting interstate off-track                                 _____ ____          wagers, see  15 U.S.C.    3002(3).   This  means, in short,  that                  ___          Lincoln  accepts bets on horseraces  to be run  at distant tracks          and, employing  telephone and wire  linkages, effectively  places                                          3          these wagers in the host track's parimutuel pool.  When a race is          run, closed  circuit  television transmission  enables  Lincoln's          patrons  to witness it.   Lincoln then settles  with the bettors,          pays a percentage to the host track, and retains the balance.                    While this form of wagering is legal under the relevant          laws of all states  involved here, 15 U.S.C.    3004(a) prohibits          such wagering at OTB  offices unless three parties consent:   (1)          the track which conducts the live race; (2) the racing commission          having jurisdiction to regulate racing within the state where the          live  race   occurs;  and   (3)  the  racing   commission  having          jurisdiction over race wagering in  the state where the simulcast          occurs.1  The host  racing association, in turn, must  obtain the          consent  of  the trade  association  representing  the owners  of          horses   running  in   the  live   race  before   signalling  its          acquiescence.2   See id.   Lincoln procures the  consent of these                           ___ ___          parties for every race on which it accepts wagers.                    A  separate subsection  of  the IHA  also requires  OTB          offices to obtain the approval of "all currently operating tracks          within 60  miles" or, if there  are no such tracks,  "the closest          currently operating  track in  an adjoining  State," 15  U.S.C.            3004(b)(1), before accepting interstate  off-track wagers.  It is                                        ____________________               1In the parlance of the IHA, these three entities are called          the  "host  racing association,"  "host  racing commission,"  and          "off-track  racing commission,"  respectively.   See 15  U.S.C.                                                             ___          3002(9)-(11).   We refer the reader to the statutory appendix for          more precise definitions of each term.               2The  trade association  is  called the  "horsemen's group."          See 15 U.S.C.   3002(12).          ___                                          4          no  secret  that Lincoln  regularly  violates  this provision  by          accepting wagers against Suffolk's wishes.3                    Disgruntled at being shut  out in this fashion, Suffolk          sued Lincoln in the United States District Court for the District          of  Rhode Island.   It  sought to  curtail Lincoln's  practice of          accepting wagers  on races run  at out-of-state tracks.   Suffolk          advanced  two  theories, asseverating  that  Lincoln's activities          transgressed the IHA and also constituted a pattern of indictable          activity  under federal  gambling laws,  see, e.g.,  18 U.S.C.                                                      ___  ____          1084(a) (1988), and, therefore, justified injunctive relief under          RICO.  See  18 U.S.C.     1961(1), 1962(a).   The district  court                 ___          rejected  this two-pronged assault.  It  held that Suffolk lacked          standing  to  assert a  claim under  the  IHA and  that Lincoln's          acceptance  of  interstate  off-track  wagers  without  Suffolk's          blessing  was not  the  stuff from  which  a RICO  suit  could be          fashioned.   See Sterling Suffolk Racecourse  Ltd. Partnership v.                       ___ _____________________________________________          Burrillville Racing Ass'n, Inc., 802 F. Supp. 662, 669-71 (D.R.I.          _______________________________          1992).   Hence, the  district court  denied Suffolk's  prayer for          injunctive  relief  and  granted  Lincoln's  motion  for  summary          judgment.  Id. at 673.  This appeal ensued.                     ___          II.  OFF AND RUNNING          II.  OFF AND RUNNING                    We  devote  our  initial  explicatory  efforts  to  the          leading question in  the case:  Does the  IHA give so-called "60-          mile tracks," i.e., tracks operating within sixty miles of an OTB                        ____                                        ____________________               3In December  1991, Lincoln  sought Suffolk's  approval, but          made  no sufficiently spectacular bid.  Hence, the parties failed          to reach an accord.                                          5          office,  an  implied  right  of  action  for  injunctive  relief?          Because this issue is purely legal, we consider it de novo.  See,                                                             __ ____   ___          e.g., Liberty Mutual Ins.  Co. v. Commercial Union Ins.  Co., 978          ____  ________________________    __________________________          F.2d 750, 757 (1st Cir. 1992).                    In  determining whether  a private  cause of  action is          implied in a federal statute, a court's central focus  must be on          congressional intent.  See, e.g., Karahalios v. National Fed'n of                                 ___  ____  __________    _________________          Fed.  Employees, 489  U.S.  527, 532-33  (1989)  ("Unless .  .  .          _______________          congressional intent  can be  inferred from  the language  of the          statute,  the  statutory structure,  or  some  other source,  the          essential predicate  for implication  of a private  remedy simply          does  not   exist.")  (citation  and   internal  quotation  marks          omitted); Stowell v. Ives,  976 F.2d 65, 70  n.5 (1st Cir.  1992)                    _______    ____          ("There is a  presumption against  implied rights of  action    a          presumption  that  will  endure  unless  the  plaintiff  proffers          adequate  evidence of  a  contrary congressional  intent.").   To          discern  this  intent,  courts  employ  the  customary  tools  of          statutory  interpretation, see, e.g.,  Thompson v.  Thompson, 484                                     ___  ____   ________     ________          U.S. 174,  179 (1988); Touche Ross  & Co. v. Redington,  442 U.S.                                 __________________    _________          560, 575-76 (1979),  frequently asking, however,  three questions          which  often have  special  salience in  connection with  implied          rights of action.  These queries are: (1) Is the plaintiff one of          the class for whose especial benefit the legislation was enacted?          (2) Is  the remedy sought consistent with the underlying purposes          of the  legislative  scheme?   (3)  Is the  cause of  action  one          traditionally  relegated to state law?  See Thompson, 484 U.S. at                                                  ___ ________                                          6          179;  Cort v.  Ash, 422  U.S.  66, 78  (1975); Latinos  Unidos de                ____     ___                             __________________          Chelsea v. Secretary of HUD, 799 F.2d 774, 792 (1st Cir. 1986).4          _______    ________________                    Here,   the  district   court  followed   this  roadmap          expertly.  See Sterling, 802 F. Supp. at 666-69.   Its opinion is                     ___ ________          astute.   Its views  are articulated with  clarity and precision.          It builds  upon other persuasively reasoned  caselaw reaching the          identical  result.    See,  e.g.,  New  Suffolk  Downs  Corp.  v.                                ___   ____   __________________________          Rockingham  Venture, Inc., 656 F. Supp. 1190, 1194 (D.N.H. 1987).          _________________________          Under these auspicious circumstances,  we see no need to reinvent          the wheel.   Rather, we affirm the lower court's holding that the          IHA implies no private right of action in favor of 60-mile tracks          for  essentially the reasons elucidated in the opinion below.  We          pause, however, to add some observations and clarifications.                    First:   Although we concur in  Judge Lagueux's bottom-                    First:                    _____          line  assessment  that the  IHA does  not  give 60-mile  tracks a          private right of action, and in  his related evaluation of two of          the  three Cort factors   the  remedy that Suffolk seeks seems to                     ____          be at  odds with the IHA's  underlying purposes and  the cause of          action questions what activities may lawfully be carried out at a          state-regulated   gambling   facility,  a   matter  traditionally                                        ____________________               4To  be sure, the Cort  Court also asked  a fourth question:                                 ____          Is  there  evidence of  legislative intent  to  create or  deny a          private right  of action?   See Cort,  422 U.S. at  78; see  also                                      ___ ____                    ___  ____          Latinos Unidos,  799 F.2d at 792.   The Justices  have since made          ______________          clear, however, that the  fourth question is really a  tote board          for  tallying  the  answers  to  all  the  other  inquiries  and,          therefore, need not be considered separately.   See Thompson, 484                                                          ___ ________          U.S. at 179; California v. Sierra Club, 451 U.S. 287, 293 (1981);                       __________    ___________          see  also Royal Business Group,  Inc. v. Realist,  Inc., 933 F.2d          ___  ____ ___________________________    ______________          1056, 1060 (1st Cir. 1991).                                          7          relegated to state  law   we  think it is  advisable to begin  by          remarking  a point of disagreement.  Unlike Judge Lagueux, 802 F.          Supp. at 667, we believe Congress, even though  it did not choose          to  confer a  private right  of action,  see  infra, nevertheless                                                   ___  _____          designed section 3004(b)(1)(A) for the benefit of 60-mile tracks.          See Cort, 422 U.S. at 78;  see also Royal Business Group, Inc. v.          ___ ____                   ___ ____ __________________________          Realist, Inc., 933 F.2d 1056, 1061-62 (1st Cir. 1991) (discussing          _____________          "especial benefit" test).                    The especial benefit inquiry in implied right of action          cases need not be a search for a single class of plaintiffs   the          class which the entire statute is most directed toward assisting.          Rather, different parts  of a  statutory scheme can  be aimed  at          benefitting different classes  of persons.   See, e.g., Cohen  v.                                                       ___  ____  _____          Massachusetts Bay  Transp.  Auth., 647  F.2d 209,  212 (1st  Cir.          _________________________________          1981) (noting  that a particular  section of a  statute primarily          benefitted  consumers  while  a  different section  of  the  same          statute  primarily benefitted transit  workers); Comtronics, Inc.                                                           ________________          v. Puerto  Rico Tel.  Co.,  553 F.2d  701,  705 (1st  Cir.  1977)             ______________________          (discussing  a statute  that  especially benefitted  two separate          groups).  The inquiry,  then, focuses on whether any  language in                                                           ___          the  statute sufficiently  indicates  a motivating  congressional          purpose to benefit  the class in question  as opposed to, say,  a          mere  congressional expression  of  knowledge  anent, or  passive          approval of,  a tangential  benefit.   See  California v.  Sierra                                                 ___  __________     ______          Club,  451 U.S. 287, 294 (1981); Cannon v. University of Chicago,          ____                             ______    _____________________          441  U.S. 677, 690-94 (1979).   Properly conducted,  this type of                                          8          investigation weeds  out statutes which protect  a general public          interest and  only incidentally create advantages  for particular          people.  See,  e.g., Cannon,  441 U.S. at  690; Arroyo-Torres  v.                   ___   ____  ______                     _____________          Ponce Fed. Bank, 918 F.2d 276, 278 (1st Cir. 1990).          _______________                    When  we shine the  light of this  understanding on the          IHA,  we think  that 60-mile  tracks meet the  "especial benefit"          criterion.    Section 3004(b)(1)(A)  requires  an  OTB office  to          procure  the  approval of  all  60-mile  tracks before  accepting          interstate off-track wagers.  This requirement, by its own terms,          adequately   evinces  congressional   intent  to   safeguard  the          interests of  60-mile tracks  and, therefore,  must be  viewed as          redounding to  their especial  benefit.  The  legislative history          fortifies this conclusion.   See,  e.g., S. Rep.  No. 1117,  95th                                       ___   ____          Cong., 2d Sess. 4-5 (1978), reprinted in  1978 U.S.C.C.A.N. 4144,                                      _________ __          4147-48.   No more is exigible.   See Cannon, 441  U.S. at 690-94                                            ___ ______          (finding especial benefit conferred by language more general than          that contained in the IHA).                    Still, we hasten to  add that this fact alone  does not          strike the gold.   In this case, the especial  benefit element is          at  most  a  dim  counterpoint  to  the  bold-faced  evidence  of          congressional  intent  intricately   interwoven  into  the  IHA's          language  and   structure.    Therefore,  the   district  court's          miscalculation constitutes harmless error.                    Second:   We  turn  now  to  the  other  indicators  of                    Second:                    ______          legislative intent.  It is  a familiar precept that, in cases  of          statutory  interpretation, the  language  of the  statute  enjoys                                          9          preeminence.  See Northwest  Airlines, Inc. v. Transport Workers,                        ___ _________________________    _________________          451 U.S. 77,  91 (1981); Transamerica Mortgage  Advisors, Inc. v.                                   _____________________________________          Lewis, 444 U.S.  11, 15-16; Touche Ross, 442 U.S.  at 568.  Here,          _____                       ___________          notwithstanding  the especial  benefit  point, the  words of  the          statute  speak  strongly  against  implying a  private  right  of          action.  We explain briefly.                    When a statute expressly provides remedies, courts must          be extremely reluctant to expand its sweep by augmenting the list          of  prescribed  anodynes.    To   the  exact  contrary,  a  court          confronted with such a  situation should ordinarily conclude that          the legislature  provided  precisely the  redress  it  considered          appropriate.  See, e.g., Karahalios, 489 U.S. at  533 (collecting                        ___  ____  __________          cases); Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S.                  _______________________________    ____________          1, 14-15 (1981); Nashoba Communications, Ltd. v. Town of Danvers,                           ____________________________    _______________          893 F.2d 435, 440 (1st Cir. 1990).  This is such a case.  The IHA          explicitly identifies  the parties entitled to  bring actions for          damages or injunctions, see 15 U.S.C.   3006   and 60-mile tracks                                  ___          are not among them.   When discussing the potential  liability of          violators  and outlining  the  damages  they  must pay,  the  IHA          identifies as  potential recipients  of damage awards  only these          same parties.  See 15 U.S.C.    3005.  And, moreover, the statute                         ___          employs a damage  calculation formula, see  id., that is  totally                                                 ___  ___          irrelevant to entities like 60-mile tracks.  It strains credulity          to argue that these serial omissions are serendipitous.                    The IHA's venue and jurisdictional provisions  point in          the   same  direction.    The  statute  provides  that  venue  is                                          10          appropriate only in a district in which either the host track  or          the  display track  is located.   See  15 U.S.C.    3007(b).   It                                            ___          further  provides that  jurisdiction is  appropriate only  in the          courts of the host state or the off-track state.5   See 15 U.S.C.                                                              ___             3007(c).  In particular  contexts, a statute's  silence can be          informative.   So it is here:   the absence of  any provision for          venue or jurisdiction based  on the location of an  aggrieved 60-          mile track tells a tale.                    In  sum, given the language  of the statute    what the          IHA says and  what it shies away  from saying   there is  no sure          footing for the implication of a private right of action favoring          non-consenting 60-mile tracks.                    Third:    The structure  of a  statute  can also  be of                    Third:                    _____          inestimable value in its interpretation.   See Crandon v.  United                                                     ___ _______     ______          States,  110  S. Ct.  997, 1001  (1990);  Greenwood Trust  Co. v.          ______                                    ____________________          Massachusetts, 971 F.2d 818,  824 (1st Cir. 1992),  cert. denied,          _____________                                       _____ ______          113 S. Ct. 974 (1993).  In this instance, the statute's structure          seems highly significant.  The provision requiring OTB offices to          secure  the  approbation of  the  horsemen's  group, host  racing          association,   host  racing  commission,   and  off-track  racing          commission  is  set  conspicuously   apart  from  the   provision          requiring  display tracks to seek the approval of 60-mile tracks.          Compare 15 U.S.C.   3004(a) with 15 U.S.C.   3004(b).          _______                     ____                    The language of  the statutory provisions bolsters  the                                        ____________________               5The "off-track State" is the state in which the "interstate          off-track wager is accepted."  15 U.S.C.   3002(6).                                          11          conclusion that  these structural  differences are  pregnant with          meaning.   Congress phrased the  former provision as  an absolute          condition precedent to off-track wagering across state lines, see                                                                        ___          15 U.S.C.     3004(a)  (an "interstate  off-track  wager  may  be          accepted  by  an  off-track  betting system  only  if  consent is                                                       ____  __          obtained  from [four entities]") (emphasis supplied), but phrased          the  latter provision merely as  a directive to  a private party.          See 15 U.S.C.    3004(b)(1) ("any off-track betting  office shall          ___          obtain  the approval of [tracks  within a 60-mile  radius]").  As          the  Court  has indicated,  a  statutory provision  phrased  as a          command to specific people, like the one upon which Suffolk rests          its  hopes,  is unlikely  to breed  an  implied private  right of          action  because  such language  usually  evinces a  congressional          concern with  instructing the putative violator  rather than with          providing  a  remedy  to   the  putative  victim.    See,   e.g.,                                                               ___    ____          Universities Research Ass'n v. Coutu, 450 U.S. 754, 772-73 & n.23          ___________________________    _____          (1981); Cannon, 441 U.S. at 690-93.                  ______                    Fourth:  In this  case, the whole is certainly  no less                    Fourth:                    ______          than the  sum of its constituent  parts.  The language  of almost          every  section of  the  IHA, and  the  structure of  the  pivotal          provisions,  strongly suggest  that  Congress did  not intend  to          provide  disapproving  60-mile tracks  with  a  private right  of          action against display tracks.   Having discerned so striking  an          indication of  congressional intent, deeply rooted in the text of          the  statute itself,  we find  Suffolk's reliance  on fragmentary          excerpts  from the  legislative history  to  be little  more than                                          12          grains  of desert  sand in  the teeth  of a  haboob.   Even clear          legislative  history   and the history here is less than pellucid             must yield to a  contrary implication easily  derivable from a          statute's text.   See Puerto  Rico Dep't of  Consumer Affairs  v.                            ___ _______________________________________          Isla  Petroleum  Corp., 485  U.S. 495,  501  (1988); see  also 2A          ______________________                               ___  ____          Norman J.  Singer, Sutherland  Statutory  Construction     46.04,                             ___________________________________          46.07  (5th ed.  1992) (concluding  that courts,  when construing          statutes, must adhere primarily to language and structure).                    Fifth:   We  reject  appellant's plea  that denying  an                    Fifth:                    _____          implied  right  of  action  will render  nugatory  the  statutory          provisions dealing  with  60-mile tracks.   Appellant's  reliance          upon a finding  of especial benefit, see supra  pp. 6-8, to prove                                               ___ _____          this  point  is misplaced.    That Congress  purposely  sought to          confer a benefit  on entities  like Suffolk does  not imply  that          such was the only   or  even the overriding   motive for enacting          the  statute.  See, e.g., Cort, 422  U.S. at 81-82 & n.13; Cohen,                         ___  ____  ____                             _____          647  F.2d at 212.  Nor  does Congress's intent to benefit 60-mile          tracks inevitably imply  that Congress deemed a  private right of          action  to be a necessary or advisable means of accomplishing its          goal.  See  Coutu, 450 U.S.  at 771 (explaining that  "[t]he fact                 ___  _____          that  an enactment is designed to benefit a particular class does          not end the  inquiry; instead it must  also be asked whether  the          language of the statute indicates that Congress  intended that it          be  enforced  through private  litigation"); accord  Daily Income                                                       ______  ____________          Fund, Inc. v. Fox, 464 U.S. 523, 540-41 (1984); Transamerica, 444          __________    ___                               ____________          U.S. at 24.                                          13                    By making  manifest that OTB offices  operating without          the approval of 60-mile tracks are flouting federal law, Congress          supplied  other  parties with  a  potential  defense should  they          cancel contracts with the  offending facility or withhold consent          to  interstate off-track wagering at such a facility.  Cf., e.g.,                                                                 ___  ____          Alabama  Sportservice, Inc.  v. National Horsemen's  Benevolent &          ___________________________     _________________________________          Protective Ass'n, Inc.,  767 F.  Supp. 1573,  1579-80 (M.D.  Fla.          ______________________          1991)  (suggesting  that  withholding of  consent  on  reasonable          grounds  would   not  be  an  actionable   restraint  of  trade).          Moreover, creating the framework for assertion of such a  defense          benefits  the  60-mile  tracks  by furnishing  an  incentive  for          display tracks  to comply with  the requirement.6   See generally                                                              ___ _________          Daily  Income Fund, 464 U.S. at 535,  541 & n.11 (explaining that          __________________          the  statutory  objective to  benefit a  class  may be  served by          giving  other parties  the  right to  sue).   Similarly,  display          tracks  and  60-mile tracks  are frequently  located in  the same          state and,  therefore, subject to the  same regulatory authority.          Where  that  occurs, the  IHA has  the  effect of  permitting the          racing commission either to insist on pre-approval or to work out          some other satisfactory solution.  Even when a 60-mile track does          not  have  this  home   field  advantage,  the  off-track  racing          commission  may  well  be  persuaded to  take  regulatory  action          against  a display track  which, like  Lincoln, scorns  a federal                                        ____________________               6Lincoln  itself has  been hoist  on this  petard.   Several          organizations  withdrew consent because  of Lincoln's  failure to          obtain Suffolk's approval, thereby depriving Lincoln of the right          to  accept  wagers on  races  originating  at the  non-consenting          tracks.                                          14          mandate.   Cf.,  e.g., CBS  Inc.  v. FCC,  453  U.S. 367,  373-75                     ___   ____  _________     ___          (1981); FCC v. Pacifica Foundation, 438 U.S. 726, 730-31 (1978).                  ___    ___________________                    In sum,  our holding that  no private  right of  action          exists  does not  sanction blatant  disregard of  federal  law or          render  the approval  requirement  without worth  to the  60-mile          tracks.   It merely ensures  that negotiations for  a green light          from  market-area  tracks  will  occur in  the  context  Congress          envisioned, with neither party  completely beholden to the other.          After all,  were we to  infer a right  of action along  the lines          that  Suffolk  delineates,  we   would  hand  60-mile  tracks  an          important veto  power over  the operation  of nearby  OTB offices          and, in  the  bargain,  tilt  the delicate  balance  Congress  so          painstakingly constructed.                    We  will not  belabor  the point.    In the  long  run,          Congress may well have thought that the indirect benefits flowing          from a right of approval that  had little bite were preferable to          the potential vices involved in granting 60-mile tracks the right          to  gnaw at  will.   See generally  Jerry L.  Mashaw, Textualism,                               ___ _________                    ___________          Constitutionalism, and the Interpretation of Federal Statutes, 32          _____________________________________________________________          Wm.  &  Mary L.  Rev. 827,  842  (1991) (suggesting  that implied          private rights  of  action  can  eclipse the  important  role  of          agencies in weighing conflicting concerns); Frank H. Easterbrook,          Foreword:  The Court and the Economic System, 98 Harv. L. Rev. 4,          ____________________________________________          45-51 (1984)  (warning that  courts, in  venturing  to alter  the          particular  personality which  Congress has  chosen to  embody in          statutes,  may  shift  the   balance  of  entitlements  and  sire                                          15          overdeterrence).          III.  THE HOME STRETCH          III.  THE HOME STRETCH                    We  turn  next,  albeit  briefly, to  the  question  of          whether  appellant, on  these  facts, framed  a cognizable  claim          under the RICO statute.  Suffolk argues that Lincoln's unapproved          acceptance of wagers constitutes a pattern of indictable activity          under  federal gambling  laws and,  therefore, violates  the RICO          statute.   The court below did  not agree.  See  Sterling, 802 F.                                                      ___  ________          Supp.  at 669-70.   We think  the lower  court reached  the right          result:  Lincoln's acceptance of wagers on distant races  without          Suffolk's consent does not constitute a crime which can carry the          weight of a RICO complaint.7                    RICO targets the use, in connection with any enterprise          affecting interstate commerce, of  income derived "from a pattern          of  racketeering activity."    18 U.S.C.     1962(a).   The  term          "racketeering  activity"  is  defined  in 18  U.S.C.     1961(1).          Included  in the definition is any act indictable under 18 U.S.C.            1084, a statute which  criminalizes, inter alia, utilization of                                                 _____ ____          a  wire  facility  for the  "transmission  in  interstate  . .  .          commerce of  . . . information assisting in the placing of bets .          . .  on any sporting  event."  18  U.S.C.   1084(a).   Conceding,          withal,  that  wagering  of  the  sort  transacted  at  Lincoln's          facility is permissible under the relevant laws of all interested          states, appellant pins its RICO-related hopes on section 1084(a).                                        ____________________               7Here, again, the issue is purely legal and appellate review          is plenary.                                          16          But,  section  1084(a)  carves   out  a  specific  exception  for          circumstances in which wagering  on a sporting event is  legal in          both the sending state and the  receiving state.  See 18 U.S.C.                                                              ___          1084(b).  That exception applies here.                    Leaving  the IHA to  one side,  appellant has  no case.          The legislative history of section 1084 shows beyond peradventure          that Congress enacted section 1084(b) for  the express purpose of          allowing  off-track  betting  in  venues where  states  chose  to          legalize such  activity (thereby  reserving to  individual states          some measure of control  over what forms of gambling  could occur          within their borders).   See H.R. Rep.  No. 967, 87th Cong.,  1st                                   ___          Sess.  (1961),  reprinted  in  1961  U.S.C.C.A.N.  2631, 2632-33.                          _________  __          Thus, given that the  operation of Lincoln's OTB office  does not          offend relevant state law, we  have no non-IHA-related reason  to          declare that  the actions complained  of in this  suit constitute          indictable conduct under section 1084.                    Appellant  tells us  that the  IHA makes  a dispositive          difference.  But, we do not understand how this can be true.  All          available evidence  indicates that  Congress intended the  IHA to          have  purely  civil  consequences.     For  instance,  the  IHA's          enforcement  and  remedies   sections  specifically  exclude  the          possibility  of governmental  involvement and/or  the specter  of          criminal penalties.  See  15 U.S.C.     3005, 3006.  The  section                               ___          dealing  with  jurisdiction  and  venue  refers  only  to  "civil          action[s]."  15 U.S.C.    3007.  The legislative  history teaches          that Congress intended there to "be no Government enforcement" of                                          17          the  IHA; and  further intended that  "[a]ny person  accepting an          interstate  wager other  than  in conformity  with  the act  will          instead be civilly liable in a private action  for damages to the          _______          host  State,  the host  racing  association,  and the  applicable          horsemen's group."  S.  Rep. No. 1117, 1978 U.S.C.C.A.N.  at 4146          (emphasis  supplied); see also H.R. Rep. No. 1733, 95th Cong., 2d                                ___ ____          Sess.  3 (1978)  (same).   In the  face  of this  imposing array,          Suffolk's  argument  that   the  IHA  serves  as  a   fulcrum  to          criminalize Lincoln's activities must fail.                    To recapitulate,  we think  it clear that  Congress, in          adopting section  1084, did not  intend to criminalize  acts that          neither the  affected states nor Congress  itself deemed criminal          in  nature.  Lincoln's acts fall into this chiaroscuro category            perhaps  not right, but certainly not felonious.  It follows that          these acts, not indictable  under section 1084, cannot constitute          a  pattern of  racketeering activity  within RICO's  definitional          parameters.   Hence,  the  court below  properly granted  summary          judgment on the RICO count.8          IV.  AT THE WIRE          IV.  AT THE WIRE                    We  need  go no  further.    Simply stated,  Congress's          discernible intent precludes us from inferring a private right of                                        ____________________               8The district court held, in the alternative, that RICO does          not  confer  a  right to  sue  for  equitable  relief on  private          plaintiffs and  that, therefore,  even  if Suffolk  had raised  a          colorable RICO claim, no  injunction could issue.  See  Sterling,                                                             ___  ________          802 F.  Supp. at 670-71; see  also Lincoln House, Inc.  v. Dupre,                                   ___  ____ ___________________     _____          903  F.2d 845, 848 (1st  Cir. 1990) (expressing  doubts about the          availability of such relief).  Because we affirm, without caveat,          the district  court's primary holding concerning  the RICO claim,          we do not address this alternate ground.                                          18          action in appellant's  favor.   Because this is  so, and  because          appellant's  complaint  likewise  fails   to  limn  a  cognizable          racketeering claim, the judgment  below, to invoke the name  of a          very famous racehorse, must be          Affirmed.          Affirmed.          ________                                          19
