
USCA1 Opinion

	




        October 11, 1996    United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2107                      ROMA CONSTRUCTION COMPANY AND PETER ZANNI,                               Plaintiffs, Appellants,                                          v.                               RALPH A. ARUSSO, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The  concurring opinion  by  Judge Lynch  in  the  above-captioned        case, issued on September 27, 1996, is corrected as follows:        On page 36, line 3: insert "in" before "stating"        On page  36, footnote 16:  change "footnote 7  supra" to "footnote  14                                                       _____        supra"        _____        On page 38, line 6: insert "that" after "likely"        On page 40, line 9: change "operate" to "have operated"        On page 42, line 8: change "supra footnote 10" to "supra footnote 17"                                    _____                  _____                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2107                              ROMA CONSTRUCTION COMPANY                                   AND PETER ZANNI,                               Plaintiffs - Appellants,                                          v.                               RALPH R. ARUSSO, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                _____________________               G.  Robert Blakey, with  whom Ina  P. Schiff,  Henry F. Spaloss               _________________             ______________   ________________        and Spaloss & Rosson were on brief for appellants.            ________________               Kathleen  M.  Powers, with  whom Marc  DeSisto and  DeSisto Law               ____________________             _____________      ___________        Offices  were on  brief for  appellee  Town of  Johnston.   Samuel  D.        _______                                                     __________        Zurier, with  whom Julius  C. Michaelson and  Michaelson &  Michaelson        ______             _____________________      ________________________        were on brief for appellees aRusso, et al.                                  ____________________                                  September 27, 1996                                 ____________________                    TORRUELLA,  Chief  Judge.   Plaintiffs-Appellants  Roma                    TORRUELLA,  Chief  Judge.                                ____________          Construction Co,  Inc. ("Roma")  and Peter Zanni  ("Peter Zanni")          (collectively, "the plaintiffs"),  challenge the district court's          dismissal  of their  claims  against  Defendants-Appellees  Mayor          Ralph R. aRusso ("aRusso"), Councilman Benjamin  Zanni ("Benjamin          Zanni"), Domenic  DeConte, Vincent Iannazi, Anthony  Izzo, et al.                                                                     ______          (collectively,  "the  individual  defendants"), and  the  Town of          Johnston, Rhode Island ("the Town") (together with the individual          defendants, "the defendants").   Specifically, the district court          granted  judgment  on   the  pleadings  regarding:     (1) Roma's          racketeering claims  against  the individual  defendants and  the          Town under the Racketeer Influenced and Corrupt Organizations Act          ("RICO"), 18 U.S.C.    1964(a),  and R.I. Gen.  Laws   7-15-1  et                                                                         __          seq. ("state RICO"); and (2)  Roma's civil rights claims  against          ____          the individual  defendants and the  Town under 42  U.S.C.   1983.          Roma also challenges  the district court's  decision to deny  the          pro hac vice  admission of attorney G. Robert  Blakey ("Blakey").          ____________          For  the following reasons, we reverse the dismissal of the RICO,          state RICO and civil rights claims, reverse the district  court's          decision  not  to  admit  Blakey,   and  we  remand  for  further          proceedings in accordance with this opinion.                                    I.  BACKGROUND                                    I.  BACKGROUND                    We  review  dismissals  pursuant  to Fed.  R.  Civ.  P.          12(b)(6)  under the  rubric that  all reasonable  inferences from          properly  pleaded facts are to be drawn in the plaintiffs' favor.          P rez-Ruiz v.  Crespo-Guill n, 25  F.3d 40, 42  (1st Cir.  1994);          __________     ______________                                         -2-          Dartmouth  Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.          _________________    _________________          1989).                    Drawing all  reasonable inferences for  the plaintiffs,          the tale proceeds  as follows.   The plaintiffs  Peter Zanni  and          Roma  entered into a  real estate development  venture with Harry          and  Russell  DePetrillo ("the  DePetrillos").    Unknown to  the          plaintiffs, the DePetrillos had  entered into an arrangement with          the alleged de facto government of  the Town, with aRusso as "the          Boss," under which payments  would be made to this  enterprise in          order to obtain necessary approvals.  After the DePetrillos  sold          their share, Peter  Zanni was informed of  this preexisting deal,          and was  warned that his  project was "dead"  if he did  not make          payments.  Having invested heavily in the project, and reasonably          believing that he was dealing with a racketeering enterprise that          had extorted and stolen for years during its control of the Town,          Peter Zanni paid up.  He  continued paying for three years, until          he  was  able to  sell his  share of  the  development.   He then          informed the FBI, and cooperated with its investigation and later          with prosecutions of official corruption in the Town.                    Peter Zanni  and Roma  brought federal and  state civil          racketeering  claims and  federal civil  rights  claims, charging          that they were  injured by the conduct  of aRusso and his  fellow          individual defendants, as well  as the Town.  The  district court          dismissed these charges on  the grounds that the plaintiffs'  own          conduct rendered them unable to maintain  standing to press their          claims.     The  plaintiffs   appeal  the  dismissals   of  their                                         -3-          racketeering1 and civil  rights claims, as  well as the  district          court's  decision to  deny the  pro hac  vice admission  of their                                          _____________          desired counsel, G. Robert Blakey ("Blakey").                                   II.  DISCUSSION                                   II.  DISCUSSION                    We  address  first  the  plaintiffs'  challenge  to the          dismissals  of their  causes of  action, and then  confront their          appeal  of  the district  court's decision  to deny  admission to          Blakey.                                 A.  Causes of Action                                 A.  Causes of Action                    After setting forth the applicable  standard of review,          we  turn  first to  the  plaintiffs'  challenge to  the  district          court's dismissal of their racketeering claims.  We then shift to          the issue of the plaintiffs' section 1983 claims.                                1.  Standard of Review                                1.  Standard of Review                    Upon  considering a  motion to  dismiss for  failure to          state a claim under Fed. R.  Civ. P. 12(b)(6), the district court          should not grant the motion unless it appears to a certainty that          the plaintiff  would be unable to recover under any set of facts.          Hospital Bldg.  Co. v. Trustees of  Rex Hosp., 425 U.S.  738, 746          ___________________    ______________________          (1976); Gonz lez-Bernal v. United States,  907 F.2d 246, 248 (1st                  _______________    _____________          Cir. 1990).  We review under  the same standard, Holt Civic  Club                                                           ________________          v. City of Tuscaloosa, 439 U.S. 60, 66 (1978).             __________________                                        ____________________          1  At oral  argument, the plaintiffs stated that, on appeal, they          did not wish to challenge the district court's dismissal of their          racketeering claims against the Town.  Plaintiffs also stipulated          that they would  not attempt  to assert such  claims against  the          Town  in the future.   Accordingly, vis-a-vis the  Town, the only          damage claims we address are those pursuant to section 1983.                                         -4-                             2.  The Racketeering Claims                             2.  The Racketeering Claims                    RICO creates  a civil remedy for  "[a]ny person injured          in his business or property  by reason of a violation of  section          1962  of this chapter."  18 U.S.C.    1964(c).  Subsection (c) of          section  1962, in  turn, declares  that it  is 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."   Id.                                                                        ___          1962(c).  An "enterprise" is  defined to include "any individual,          partnership, corporation, association or other legal entity,  and          any union or group of individuals associated in fact although not          a legal entity."  Id.   1961(4). "Racketeering activity" includes                            ___          any  one of a number of enumerated criminal acts indictable under          federal  or  state law.    See id.     1961(1).   A  "'pattern of                                     ___ ___          racketeering activity' requires at least two acts of racketeering          activity . . . the last of which  occurred within ten years . . .          after the commission  of a prior  act of racketeering  activity."          Id.   1961(5).          ___                    The district court dismissed the plaintiffs' civil RICO          claims on  the ground  that, by  their own pleadings,  plaintiffs          were not innocent victims and therefore could  not maintain civil          RICO  standing.    The  district  court  found  support  for  the          proposition that only innocent  victims could collect damages via          civil  RICO in  the legislative  history of  the provision.   See                                                                        ___                                         -5-          Organized Crime Control:  Hearings on S.  30 Before the  Subcomm.          _________________________________________________________________          No. 5 of the  House Committee on the  Judiciary, 91st Cong.,  2d.          _______________________________________________          Sess. (1970) (stating, in the Act's "Findings and  Purpose," that          "Congress finds that . . . organized crime activity in the United          States  harms innocent  investors and  competing organizations");          116  Cong. Rec.  H35,346-47  (Oct. 7,  1970)  (statement of  Rep.          Steiger, the  private civil  remedy provision's sponsor)  ("It is          the  intent of  this body,  I am  certain, to  see that  innocent          parties who are  the victims of  organized crime have a  right to          obtain proper redress.").  The district court's reasoning can  be          better delineated in conjunction with a recitation of plaintiffs'          claims.   Drawing inferences  in favor of  the plaintiffs,  their          pleadings suggest the following situation.  The plaintiffs joined          the  DePetrillos  in  a  real estate  venture,  unaware  that the          DePetrillos  had  entered  into  a  scheme  in  which  regulatory          approvals  had   already  been   granted  in  exchange   for  the          DePetrillos'  payment  of $10,000  to  aRusso  and his  purported          associates.    The plaintiffs  were  similarly  unaware that  the          DePetrillos  had agreed  to pay an  additional $40,000.   Several          years  later, defendant Councilman Benjamin Zanni approached them          for  the  purported  "balance  due."    As  the   district  court          emphasized,  the plaintiffs  then faced  a dilemma.    They could          refuse  to pay, jeopardizing  their $2 million  investment in the          project,  and   as  the   district  court  suggested   was  their          obligation, go immediately  to the authorities.   Or, they  could          submit to this extortion to protect their investment.  They chose                                         -6-          the latter route.   The plaintiffs state that they  complied with          all  rules  and  regulations,   and  did  not  seek  preferential          treatment,  but  paid to  avoid threatened  adverse consequences.          Specifically,  the plaintiffs point  to Benjamin  Zanni's alleged          statement  to Plaintiff Peter  Zanni that the  venture was "dead"          unless the balance was paid.  Three years later,  after they sold          their  partnership  interests  in  the  venture,  the  plaintiffs          contacted the FBI, and assisted agents in a sting operation.                    Looking at these contentions, one reasonable conclusion          is  that the plaintiffs made these payments without any intent or          desire to  subvert governmental processes, but  felt compelled to          pay  to protect their substantial investment  in the venture, and          did  not contact the FBI until they  had mitigated risks to their          investment.   However,  the district  court concluded  that, even          under this favorable view  of the plaintiffs' conduct they  could          not be considered innocent  parties, and so could  not, according          to the district court's interpretation of RICO standing, maintain          a civil RICO claim.  The district court concluded that, since the          plaintiffs' own pleadings indicate that they paid $40,000 to  the          individual defendants to assure  timely processing of permits and          approvals  necessary  for  their  project,  the  plaintiffs  were          "neither  innocent nor victims."  Roma Constr. Co. v. aRusso, 906                                            ________________    ______          F. Supp. 78, 82 (D.R.I. 1995).                    The plaintiffs challenge the district court's dismissal          of  their civil RICO claims on the pleadings.  Plaintiffs dispute          that  there is any "innocent  party" requirement under  RICO.  In                                         -7-          the alternative, the plaintiffs  contend that, even assuming such          an "innocent  party" requirement, the  district court erred  as a          matter  of law in concluding, that even taking the most favorable          view  of the  plaintiffs'  pleadings, they  were necessarily  not          "innocent  parties."  Although  the district  court spoke  of the          "innocent party"  requirement as one of "standing," it appears to          have also considered its "innocent party" requirement as being in          the nature of an affirmative defense which could be determined at          the pleadings stage.  The  district court analogized to antitrust          cases  under  the Clayton  Act  in which  an  "equal involvement"          defense is recognized.   See Bateman Eichler,  Hill Richards Inc.                                   ___ ____________________________________          v.  Berner, 472 U.S. 299,  310-11 (1985); Perma  Life Mufflers v.              ______                                ____________________          International Parts Corp., 392  U.S. 134 (1968).  Whether  or not          _________________________          there exists such an "innocent  party" requirement is a  question          of first impression in this circuit and, indeed, we are not aware          of any  cases anywhere that  adopt such  a requirement.   We need          not,  however, decide whether or  to what extent  RICO imposes an          "innocent party"  limitation,  or whether  any  such  requirement          might take the form  of a standing requirement or  an affirmative          defense, because  we conclude  that the  district court  erred in          finding that plaintiffs could  prove no set of facts  which would          show   their  nonculpability  under  all  potentially  applicable          criminal statutes.2                                        ____________________          2  In deciding not to address the broader issues discussed in the          concurring  opinion, we  need  not necessarily  quarrel with  our          respected  colleague's analysis.   Concededly,  dismissal of  the          complaint  based  on  appellees'  assertion  of  a fact-intensive          "equal  involvement"  defense  would   be  inappropriate  on  the                                         -8-                    Our  analysis  commences  with an  examination  of  the          standards under  which the  district court  evaluated plaintiffs'          behavior.   In  deciding  that such  payments,  even if  coerced,          forced  it  to conclude  that  the plaintiffs  were  not innocent          victims, the  district  court cited  two authorities.   See  Roma                                                                  ___  ____          Constr. Co., 906 F. Supp. at 81-82 (citing R.I. Gen. Laws   11-7-          ___________          4 (1994) and Model Penal  Code   240.1 commentary at  41 (1980)).          Initially, the district court noted that Rhode Island General Law            11-7-4 states that                      [n]o person shall  corruptly give  . .  .                      any gift or valuable consideration to . .                      . any public official as an inducement or                      reward  for  doing or  forebearing  to do                      . . . any act in relation to the business                      of . . . the state, city or town of which                      he or she is an official.          R.I. Gen. Laws   11-7-4 (1994).  The  statutory language does not          address the question of  whether one who pays due  to coercion is          an innocent victim.  The district court did not refer  to, and we          fail  to find, any Rhode  Island authority for  direction on this          point.                    Rather, the  district court  drew on the  commentary to                                        ____________________          undeveloped record  presently before  the court.   The concurring          opinion hypothesizes that the substance of any such defense would          be informed by preexisting  federal statutes embodying comparable          defenses.   By contrast,  the district court's  dismissal depends          entirely  on  the  existence,  vel  non,  of either  an  absolute                                         ___  ___          innocent-victim "standing"  requirement or  a  law-based in  pari                                                                   __  ____          delicto  defense,  each of  which, by  its  very nature,  is more          _______          readily susceptible  to summary disposition than a fact-intensive          "equal involvement" defense.   Thus  we caution  that nothing  we          have  said is meant to  suggest that Congress  intended to create          either  such  a "standing"  requirement  or  an  in pari  delicto                                                           __ ____  _______          defense.                                         -9-          the Model Penal Code's definition of bribery to conclude that the          plaintiffs'  payments, even  if construed  to be  the product  of          coercion, constituted illegal bribery.  See Roma Constr. Co., 906                                                  ___ ________________          F. Supp. at  81.  The  cited commentary to  section 240.1 of  the          Model Penal Code states that                       [a]  private citizen  who responds  to an                      official's  threat  of adverse  action by                      paying  money  to  secure more  favorable                      treatment evidences thereby a willingness                      to  subvert  the legitimate  processes of                      government   .   .  .   .   Such  conduct                      constitutes  a  degree of  cooperation in                      the undermining of governmental integrity                      that  is  inconsistent with  the complete                      exoneration from criminal liability.                     Model  Penal Code   240.1 commentary  at 41 (1980).  The district          court  thus concluded that  since even the  interpretation of the          pleadings   that   most   favors   the  plaintiffs   requires   a          determination that plaintiffs capitulated to official  threats of          adverse action, they were not "innocent parties."  Taken together          with  its  reading  of  the  legislative  history  that RICO  was          intended to protect "innocent parties" and with its assessment of          public policy in the form of "economic  incentives," the district          court  proceeded  to  dismiss   the  plaintiffs'  claims  on  the          pleadings.  Roma Constr. Co., 906 F. Supp. at 83.                      ________________                    The district court thus ultimately relied on the policy          concerns it understood to  be addressed in the Model  Penal Code.          Assuming for  the sake of argument that lack of "innocence" is an          issue  in  a civil  RICO claim,  the  question must  be addressed          whether the district court considered the correct sources for the          definition of  "innocence."   We believe that  where racketeering                                         -10-          statutes provide for a civil remedy, at the very least we  should          deny RICO remedies only  with reference to statutes or  case law,          not on policy grounds.  See generally Sedima,  S.P.R.L. v.  Imrex                                  _____________ _________________     _____          Co.,  473  U.S. 479,  498-500  (1985)  (rejecting,  due  to  RICO          ___          statutory language  and legislative history that  counsel a broad          interpretation,   a  court   of  appeals-imposed   RICO  standing          limitation as inappropriate  judicial "statutory amendment"  even          though  the  Court  shared   the  lower  court's  concerns  about          "extraordinary" uses  of RICO).    As a  result, we  turn to  the          question  of whether  the  issue  presented  is properly  one  of          federal common law for  which the Model Penal Code might  prove a          legitimate source of uniform legal principles, or one to which we          would apply Rhode Island law.                    The Supreme  Court has  recognized that federal  courts          have the power  to formulate  federal common law  when a  federal          rule  of  decision  is  necessary to  protect  "uniquely  federal          interests" or when  Congress has  given the courts  the power  to          develop  substantive law.   Texas  Indus. v.  Radcliff Materials,                                      _____________     ___________________          Inc.,  451  U.S.  630, 640  (citing  Banco  Nacional  de Cuba  v.          ____                                 ________________________          Sabbatino,  376 U.S. 398, 426 (1964) and Wheeldin v. Wheeler, 373          _________                                ________    _______          U.S. 647,  652 (1963)).   Areas of  "uniquely federal  interests"          include areas such as  "the rights and obligations of  the United          States, interstate  and  international disputes  implicating  the          conflicting  rights  of  States  or our  relations  with  foreign          nations, and admiralty cases."  Id. at 641.   Several courts have                                          ___          concluded  that   RICO  does  not   implicate  "uniquely  federal                                         -11-          interests," since "[r]egulation of  organized crime does not fall          within  the  above  categories  and,  although  RICO  is  federal          legislation, individual states also take active roles in fighting          organized crime and providing  redress for its injured citizens."          Friedman v.  Hartmann,  787 F.  Supp. 411,  417 (S.D.N.Y.  1992);          ________     ________          Minpeco v.  Conticommodity Servs.  Inc., 677  F.  Supp. 151,  155          _______     ___________________________          (S.D.N.Y. 1988) ("RICO, although  reflecting Congress' intent  in          providing creative federal responses to the problems of organized          crime, does not address  a uniquely federal interest."); Seminole                                                                   ________          Electric  v. Tanner, 635 F. Supp. 582,  584 (M.D. Fla. 1986).  We          ________     ______          agree that RICO does not concern uniquely federal interests.                    As a result, we  inquire whether the question presented          --  is  RICO standing  limited  to "innocent"  parties?  -- falls          within an area in which  Congress has given the courts the  power          to develop substantive law.   Texas Industries, 451 U.S.  at 640.                                        ________________          The  district court, in effect, decided that the issue of federal          civil RICO standing  and its relationship to a  party's innocence          was properly  decided as a matter of uniform federal common law.           The  district court  looked to uniform  model codes  and emergent          trends as guides for  fashioning a federal common law  rule which          would  foster what  it perceived  as important  federal interests          underlying civil  RICO.   The district  court suggested that  the          Congress that enacted RICO in  1970, which referred obliquely  in          legislative history to the  purpose of aiding "innocent parties,"          would be cognizant of the emerging Model Penal  Code trend in the          law  of bribery, presupposing that Congress gave courts the power                                         -12-          to develop substantive law regarding this issue.                    We find  no evidence  of any congressional  intent that          the "innocence"  of a RICO "victim"  should be made to  turn on a          uniform federal common  law rule.   Neither party  cites, and  we          have  been unable  to find,  statutory provisions  or legislative          history  evidencing such a grant  of authority.   While there has          been a great deal  of commentary regarding the  appropriate scope          of  federal common law, see, e.g., Morgan v. South Bend Community                                  ___  ____  ______    ____________________          Sch.  Corp.,  797  F.2d  471, 475  (7th  Cir.  1986)  (collecting          ___________          commentary), it is not disputed that "when the federal government          is  not a  party to  the litigation" --  as is  the case  here --          "neutral  state rules  that  do not  undermine federal  interests          should  be  applied unless  some  statute  (or the  Constitution)          authorizes the federal court[s] to create a rule of federal law,"          id. at  475 (citing Miree  v. DeKalb County,  433 U.S. 25,  28-33          ___                 _____     _____________          (1977)).  More  specifically, the  Supreme Court  has rejected  a          judicially created restriction on RICO  standing, despite voicing          agreement with the  policy concerns that drove  the limitation in          question.   See  Sedima,  473  U.S. at  498-500.    As a  result,                      ___  ______          assuming  --  without  concluding,  as  we  ultimately  find  the          plaintiffs to  be  innocent  parties  -- that  RICO  standing  is          limited  to "innocent parties," we believe that the question of a          party's innocence must be resolved via the incorporation of state          law into the federal law of  RICO standing in order to answer the          instant question.  We  recognize that the incorporation  of state          law into federal  law implicates a serious problem  of uniformity                                         -13-          of federal law throughout  the states.  However, since  RICO does          not implicate  uniquely federal  interests and  since there  is a          lack of support for the view that Congress authorized the federal          courts  to  generate   federal  common  law  in  this  area,  the          incorporation of state law is  the preferable alternative.   See,                                                                       ___          e.g., In re Sunrise Sec. Litig., 916 F.2d 874, 881 (3d Cir. 1990)          ____  _________________________          (finding it appropriate  "to look  to state law  for guidance  in          deciding  whether   plaintiffs   have  stated   a   nonderivative          [shareholders']  claim,  [enabling  them to  maintain  standing,]          rather  than to  fashion federal common  law"); Leach  v. Federal                                                          _____     _______          Deposit  Ins.  Corp.,  860  F.2d   1266,  1274  (5th  Cir.  1988)          ____________________          (concluding  that "the  incorporation of  state law  to determine          whether  a shareholder has been  injured under RICO is preferable          to generating federal common law"  despite the possibility of  "a          serious  problem  of uniformity  of  federal  law throughout  the          states"); cf. In re Bieter Co., 16 F.3d 929, 935  (8th Cir. 1994)                    ___ ________________          (applying federal  common law  of attorney-client privilege  to a          civil  RICO  action,  where  such application  is  authorized  by          Supreme Court Standard 503 and Supreme Court case law).                    As a  result, in  assessing  plaintiffs' innocence,  we          must  apply  Rhode  Island  bribery  law.    The  district  court          concluded  that  the  pleadings   rendered  the  plaintiffs  "not          innocent"  vis-a-vis charges of  bribery.  See  Roma Constr. Co.,                                                     ___  ________________          906 F. Supp. at 83 (stating that to allow the plaintiffs standing          might  result in  a  rule under  which  "[p]ersons, such  as  the          plaintiffs, could engage in bribery of public officials with full                                         -14-          knowledge that if the bribery scheme . . . broke down, they could          seek a treble  return on their illicit,  but failed investment").          Turning  to Rhode Island law, however,  this conclusion cannot be          reconciled  with Rhode  Island's bribery  statute.   The district          court relied on the Model  Penal Code's bribery provision,  which          states that                     [a] person is guilty  of bribery, a felony of                    the  third degree, if  he offers, confers, or                    agrees  to confer upon  another, or solicits,                    accepts or agrees to accept from another:                       (1)    any    pecuniary    benefit    as                      consideration    for    the   recipient's                      decision,  opinion, recommendation,  vote                      or  other  exercise  of  discretion  as a                      public servant, party official, or voter;                      or                       (2) any benefit as consideration for the                      recipient's        decision,        vote,                      recommendation   or  other   exercise  of                      official  discretion  in  a  judicial  or                      administrative proceeding; or                       (3) any benefit  as consideration for  a                      violation  of  a known  legal  duty as  a                      public servant or party official.             Model  Penal Code    240.1  ("Bribery in  Official and  Political          Matters").   While the district court may  have rightly concluded          that the plaintiffs are  not innocent of bribery under  the Model          Penal Code, we do not think  that this fact counsels for the same          conclusion  under   Rhode  Island  law,  since   the  Code's  own          commentaries expressly  recognize that  the Code does  not follow          Rhode  Island law.  Part II Model  Penal Code and Commentaries 6,          n.2 (1980).  Moreover,  unlike Rhode Island's statute,  the Model          Penal Code  provision contains  no requirement that  a payor  act                                         -15-          "corruptly."  Compare R.I. Gen. Laws   11-7-4 ("[n]o person shall                        _______          corruptly  give") (emphasis added) with Model Penal Code    240.1          _________                          ____          ("[a] person is guilty of bribery . . . if he offers, confers, or          agrees to confer upon another").3                        The  plaintiffs  argue  that  the  Model  Penal  Code's          omission of the term "corruptly" is no mere semantic distinction;          rather,  it represents a shift  from the common  law in expanding          the  scope of bribery sanctions for payors to situations in which          the  payor does not act corruptly.  See generally James Lindgren,                                              _____________          The Elusive  Distinction Between Bribery and  Extortion: From the          _________________________________________________________________          Common Law  to the Hobbs Act,  35 U.C.L.A. L. Rev.  815, 824 n.41          ____________________________          (1988).  We agree.  "[A] statutory term is generally presumed  to          have its common-law meaning."   Evans v. United States,  504 U.S.                                          _____    _____________          255, 259 (1992); United States v. Aguilar, ___ U.S. ___, ___, 115                           _____________    _______          S. Ct. 2357, 2370  (1995) (Scalia, J., dissenting) (stating  that                                        ____________________          3   The federal bribery  and gratuity statute,  18 U.S.C.    201,          does not, by its  terms, apply to  local officials such as  those          involved in  the instant  case, 18  U.S.C.    201(a)(1), although          cases  have held  the  statute applicable  where local  officials          administer  federally  funded programs.    See  United States  v.                                                     ___  _____________          Vel zquez, 847 F.2d 140,  142 (4th Cir. 1988) (concluding  deputy          _________          sheriff was a  "public official" with respect  to federal bribery          statute,  where  county  jail  was under  contract  with  federal          government  to  supervise  federal prisoners);  United  States v.                                                          ______________          Gallegos, 510  F. Supp.  1112, 1114 (D.N.M.  1981) (ruling  state          ________          government  employee  who  worked  under  direct  supervision  of          federal official  in administration of federal  grant program was          "public official" for purpose of  federal bribery statute).   But                                                                        ___          see United  States v.  Del  Toro, 513  F.2d  656, 662  (2d  Cir.)          ___ ______________     _________          (concluding city  administrator who was  city employee was  not a          public official even though he administered model cities program,          for which  the federal  government provided 100%  funding), cert.                                                                      _____          denied, 423 U.S.  826 (1975).   No allegation has been  made that          ______          the defendants' bribery/extortion scheme was in connection with a          federal contract or federal funding.                                         -16-          "the term 'corruptly'  in criminal laws  has a long-standing  and          well-accepted meaning").   The term "corruptly"  adds the element          of corrupt intent to the crime  of bribery.  See generally id. at                                                       _____________ ___          2370 (endorsing the  proposition that "[a]n act is done corruptly          if it's done voluntarily and intentionally to  bring about either          an  unlawful result or a  lawful result by  some unlawful method,          with  a hope  or expectation  of either  financial gain  or other          benefit  to oneself or a  benefit of another  person"); H.R. 748,          87th Cong.,  1st Sess. 18  (1961) (reporting section  201 federal          bribery statute)  (stating that "[t]he word  'corruptly' which is          also  used in obstruction of justice statutes (18 U.S.C.    1503-          1505) means with wrongful or dishonest intent").                    We agree that the term "corruptly" indicates a specific          corrupt   intent  that   differs  from   the  Model   Penal  Code          commentary's condemnation  of an  involuntary payor's  conduct as          manifesting  "a  degree  of  cooperation in  the  undermining  of          governmental  integrity  that is  inconsistent with  the complete          exoneration from criminal  liability."  Model Penal  Code   240.1          commentary  at  41.    The  mens  rea  implicated  by "corruptly"                                      _________          concerns the  intention to  obtain ill-gotten gain;  by contrast,          the Model Penal Code converts the  lack of willpower to stand  up          to abusive authority into a degree of culpability.  See Lindgren,                                                              ___          supra at 824 n.41 (stating that "[t]he Model Penal Code has taken          _____          the questionable approach of  making it bribery to capitulate  to          an extortion threat").   Admittedly, to  delve into questions  of          what  is done  "corruptly" is  more difficult  than to  apply the                                         -17-          Model Penal Code's standard.   But as one commentator  has noted,          "[t]he best that can be said for the [Model Penal Code's bribery]          provision  is   that  it  makes  difficult   questions  of  crime          definition  easy, but  this  clarity is  bought  at the  cost  of          ignoring the  settled  law of  centuries and  current notions  of          right and wrong."  Id.                             ___                    As a result, we  must apply the common law  standard of          specific corrupt intent, as included in the Rhode Island statute,          to  the plaintiffs' story.   The plaintiffs claim  that they paid          only to avoid adverse consequences, that their properties met the          standards required for  the approvals in question,  and that they          received nothing  beyond fair  treatment from payees.   Examining          these claims  with an  eye towards  detecting corrupt intent,  we          think  that a set of facts could  be found from which it could be          reasonably  inferred that  the plaintiffs  did not  make payments          voluntarily to bring about an unlawful result, with the hope of a          gain for  themselves,  but rather  that  they were  the  innocent          victims of  a criminal enterprise.  As a result, we conclude that          Rhode Island's  bribery statute  does not foreclose  a conclusion          that they are "innocent parties."                    Citing  United States  v. Mariano,  983 F.2d  1150 (1st                            _____________     _______          Cir. 1993) and United States v. Hathaway,  534 F.2d 386 (1st Cir.                         _____________    ________          1976),  the defendants assert  that we have  previously held that          "bribery  and  extortion are  not  mutually  exclusive concepts,"          Mariano, 983 F.2d at 1159;  Hathaway, 534 F.2d at 395.   However,          _______                     ________          we  think  these cases  unavailing  for  three  reasons.   First,                                         -18-          neither deals with Rhode Island's bribery statute.  Second,  even          if these cases compelled us to conclude that bribery and coercive          extortion are  not mutually  exclusive concepts under  the Rhodes          Island statute, in the  instant case a genuine issue  of material          fact  remains as to  the plaintiffs'  intent in  making payments,          based on  a reading of  the pleadings in  the best light  for the          plaintiffs.                    Third,  and finally,  Mariano, at  least, involved  two                                          _______          defendants  who  pled  guilty  to   "corruptly  giv[ing]  .  .  .          [some]thing of value" to  local government officials "with intent          to influence or reward" those officials, where the officials were          part  of a  governmental unit  that received  substantial federal          subsidies, in violation of  18 U.S.C.   666(a)(2).   Mariano, 983                                                               _______          F.2d at 1153.  On appeal, both defendants challenged the district          court's  application  of  the sentencing  guideline  relating  to          bribery  rather than  the guideline  appropriate to  providing an          illegal gratuity.   Id. at  1159.   They argued  that "they  were                              ___          victims, not  perpetrators, of  an extortionate scheme,  and that          they  received nothing  extra  in return."    Id.   Applying  the                                                        ___          clearly  erroneous  standard of  review,  we  concluded that  the          "guideline  analogy chosen by the district  court was well within          its  purview," noting that "when there are two plausible views of          the record,  the  sentencing court's  adoption of  one such  view          cannot be clearly erroneous."   Id. at 1160; see United States v.                                          ___          ___ _____________          St. Cyr,  977 F.2d 698, 706  (1st Cir. 1992).   In particular, we          _______          noted that the Mariano defendants could not "expect the courts to                         _______                                         -19-          swallow their tale uncritically."  Mariano, 983 F.2d at 1160.                                             _______                    In this  case, the district court  improperly dismissed          the plaintiffs' case before it had a chance to swallow, let alone          digest,  their story.    At this  stage  of the  game,  since one          plausible view is  that the  plaintiffs were in  fact victims  of          coercive  extortion, and  since they  have not  pled guilty  to a          crime that involves "corrupt intent" as an element as we noted of          the defendants in Mariano, 983 F.2d at 1159, we conclude that the                            _______          plaintiffs in the instant case may press on with their claim.  As          a  result, we  reverse  the  district  court's dismissal  of  the          plaintiffs' federal  RICO claims.   Accordingly, we  also reverse          the  district   court's  dismissal  for   lack  of   supplemental          jurisdiction, see 28 U.S.C.   1367, of state RICO claims pursuant                        ___          to R.I. Gen. Laws     7-15-2, 7-15-3 and 9-1-2.4  We  remand both          federal  and  state  RICO   claims  for  further  proceedings  in          accordance with this opinion.                                         ____________________          4  Similar  to federal RICO, R.I. Gen.  Laws   7-15-2(c) provides          that                      [i]t  shall  be unlawful  for  any person                      employed  by  or   associated  with   any                      enterprise to conduct  or participate  in                      the  conduct  of   the  affairs  of   the                      enterprise through  racketeering activity                      or collection of an unlawful debt.          Rhode Island law also uses broad standing language that resembles          that of 18 U.S.C.   1964(c) in its provision for civil  liability          for racketeering offenses.   See R.I. Gen. Laws    9-1-2 (stating                                       ___          that "[w]henever  any person  shall suffer  any injury  . . .  by                            __________                __________          reason of the  commission of any crime  or offense .  . . he  [or          she] may recover his [or her] damages for such injury  in a civil          action against the offender") (emphasis added).                                         -20-                    Because we conclude that  even if RICO's civil remedies          were limited to innocent parties, we would apply Rhode Island law          to the  question of the  plaintiffs' innocence, and  Rhode Island          law compels a reversal of the district court's dismissal of their          claims, we leave  for a later time the question  of whether those          who are not innocent parties can be denied civil RICO remedies.                              3.  The Civil Rights Claim                              3.  The Civil Rights Claim                    The district court also dismissed the plaintiffs' claim          that  the individual defendants and the Town acted under color of          state  authority  and   municipal  practice,  and  deprived   the          plaintiffs of property  and rights  in violation of  42 U.S.C.             1983.                    Section  1983 authorizes  actions for  equitable relief          and/or damages against "[e]very  person who under color of  any .          . .  custom or usage, of any State or Territory . . . subjects or          causes to be subjected any citizen  of the United States or other          person . . .  to the  deprivation of any  rights, privileges,  or          immunities  secured by the Constitution  and laws."   42 U.S.C.            1983.  Furthermore, those who commit actionable wrongs under that          section "shall be  liable to the  party injured in  an action  at          law, suit in equity, or other proper proceeding in redress."  Id.                                                                        ___          In  construing the terms "custom"  and "usage," the Supreme Court          has instructed that                       Congress included customs and  usages [in                      section 1983] because  of the  persistent                      and  widespread  discriminatory practices                      of state  officials . . .  . Although not                      authorized by written law, such practices                      of  state  officials  could  well  be  so                                         -21-                      permanent   and   well   settled  as   to                      constitute a  "custom or usage"  with the                      force of law.          Monell v. Department of Social Servs. of New  York, 436 U.S. 658,          ______    ________________________________________          691  (1978) (quoting Adickes v.  S.H. Kress &  Co., 398 U.S. 144,                               _______     _________________          167-68 (1970)); see Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st                          ___ _________    ______          Cir. 1989).                    Courts have  set forth two requirements for maintaining          a section 1983 action grounded upon an unconstitutional municipal          custom.  First, the  custom or practice "must be  attributable to          the municipality."  Id. at 1156.   That is, "it must be so  well-                              ___          settled  and widespread  that the  policymaking officials  of the          municipality can  be said to  have either actual  or constructive          knowledge  of  it yet  did nothing  to  end the  practice."   Id.                                                                        ___          Second,  "the custom must  have been the cause  of and the moving          force behind the deprivation of constitutional rights."  Id.                                                                   ___                    The district court concluded that in the facts alleged,          "there  [was] no  evidence  that  the  Town  []  had  any  policy          endorsing or advocating extortion and the acceptance of bribes by          town  officials."    Roma  Constr.  Co.,  906  F.  Supp.  at  83.                               __________________          Furthermore,  the district  court  went on  to  state that,  even          assuming "that there was a de facto municipal policy of extortion          promulgated  by  aRusso  and   perpetrated  by  the  other  named          defendants," the  plaintiffs could  not succeed in  their section          1983 claim because the  alleged policy was not  the cause of  any          constitutional  harm.  Id.   Noting that there  must be a "direct                                 ___          causal link" between a municipal policy or custom and the alleged                                         -22-          constitutional violation  to find section 1983  liability, id. at                                                                     ___          84 (quoting City of  Canton v. Harris, 489 U.S. 378, 385 (1989)),                      _______________    ______          the  district court  concluded  that "in  this case,  the 'causal          link'  or  'moving  force'  behind  any perceived  constitutional          violations is the plaintiffs' . . .  continual, voluntary payment          of bribes to the defendants," id.                                        ___                    For  the  reasons  we  have stated  in  our  discussion          regarding  bribery and coercive  extortion, we think  a finder of          fact could  reasonably infer  that the plaintiffs'  payments were          made pursuant to coercive extortion, and thus did not necessarily          constitute "voluntary payment of bribes" with corrupt intent.  At          this stage, we must resolve reasonable inferences in favor of the          plaintiffs.  Thus, we  conclude that the plaintiffs could  show a          direct causal link between the defendants' coercive extortion and          the plaintiffs' losses.                    As  a  result,  we  turn  to the  question  of  whether          coercive  extortion, if  found, could  be  attributed to  some de                                                                         __          facto municipal  policy.   "An unconstitutional policy  or custom          _____          may be inferred from  a single decision  or act .  . . [but]  the          isolated action must be taken by a municipal official with 'final          policy-making  authority'  in the  relevant  area  of the  city's          business."  Rodr quez  v. Furtado,  771 F. Supp.  1245, 1257  (D.                      _________     _______          Mass.  1991) (citations omitted).   However,  "[t]he fact  that a          particular  official  --  even  a policymaking  official  --  has          discretion in the  exercise of  a particular  function does  not,          without  more,  give rise  to  municipal  liability  based on  an                                         -23-          exercise of that discretion."  Pembaur v. City of Cincinnati, 475                                         _______    __________________          U.S. 469, 481-82 (1986) (Brennan, J., plurality opinion).                    In their pleadings,  the plaintiffs  have alleged  that          aRusso  as Mayor, Benjamin Zanni as a town councilman, and others          operated a de facto government which controlled the Town for more                     ________          than  a  decade,   routinely  engaging  in   bribery,  extortion,          corruption and other unlawful  activities.  While a  showing that          aRusso acted illegally in the exercise of his discretion as Mayor          might  not by itself give  rise to municipal  liability, we think          that under  these pleadings, the plaintiffs could  indeed prove a          set  of  facts  from  which  a  trier  of  fact  could  infer  an          unconstitutional  policy or  custom  with respect  to the  Town's          government.    For example,  a  fact finder  could  conclude that          extortion of  outsiders, businessmen,  or developers, if  proven,          was "'the way  things are done and have been  done'" in the Town.          See Kibbe  v. City of  Springfield, 777  F.2d 801, 806  (1st Cir.          ___ _____     ____________________          1985)  (quoting Grandstaff v. City  of Borger, 767  F.2d 161, 171                          __________    _______________          (5th  Cir.  1985), cert.  denied,  480  U.S. 916  (1987)),  cert.                             _____________                            _____          granted, 475  U.S. 1064  (1986),  cert. dismissed,  480 U.S.  257          _______                           _______________          (1987).  As a  result, we reverse the district  court's dismissal          of  the plaintiffs' section 1983  claim on the  pleadings, and we          remand for further proceedings on their claim.                         B.  Blakey's Pro Hac Vice Admission                         B.  Blakey's Pro Hac Vice Admission                                      ____________                    The plaintiffs also appeal the  district court's denial          of admission pro  hac vice  of their attorney,  G. Robert  Blakey                       _____________          ("Blakey").  On May  15, 1995, the plaintiffs moved  for Blakey's                                         -24-          admission pro hac vice.  The district court denied the motion  on                    ____________          June  2,  1995.   On  June  12,  1995, the  plaintiffs  moved for          reconsideration of  the court's order; the  district court denied          the motion for reconsideration on September 25, 1995.                    The district court articulated two grounds for  denying          Blakey's pro hac vice admission.  First, the district court noted                   ____________          that a previous  motion by the  plaintiffs seeking the  admission          pro  hac vice of another of their attorneys, Spaloss, had already          _____________          been granted.  Second, the district court expressed concern about          the amount of attorney's fees being generated by the plaintiffs.5                    The Supreme Court has recognized that "in many District          Courts, the decision  on whether to grant pro  hac vice status to                                                    _____________          an out-of-state  attorney is  purely discretionary."   Frazier v.                                                                 _______          Heebe,  482 U.S. 641, 651  n.13 (1987).   However, the plaintiffs          _____          argue  that the  U.S. District  Court for  the District  of Rhode          Island is  not one  of  those courts.   Local  Rule  5(c) of  the          District of Rhode Island provides in pertinent part that                      [a]ny  attorney who is  a member  in good                      standing of the bar  of the United States                      Supreme Court, of any other United States                      District court,  or of the  highest court                      of   any  state,   shall  on   motion  be                                         ______________________                      permitted  to appear  once in  a calendar                      ____________________                      year in a case  or group of related cases                      in  association with a  member of the bar                      of this court who  is actively engaged in                      the practice  of law within  the State of                      Rhode Island . . . .          D.R.I.  R. 5(c) (emphasis added).   The plaintiffs  argue that in                                        ____________________          5   A  successful  civil RICO  plaintiff  may collect  reasonable          attorney's fees  in  addition  to  treble  damages.    18  U.S.C.            1964(c).                                            -25-          contrast  to the  Local  Rules of  the  other districts  in  this          circuit,  Rhode Island's rule does  not by its  terms provide for          the court's discretion.  Compare D.R.I. R. 5(c) ("shall on motion                                   _______          be  permitted to  appear") with  D. Me. R.  3(d)(1) ("may  at the                                     ____          discretion of  the Court  . .  . be  permitted to  practice"); D.          Mass.  R. 6(b)  ("may  appear and  practice  in this  court in  a          particular  case  by  leave  granted  in the  discretion  of  the          court"); D.N.H. R. 5(b)  ("may at the discretion of  the court");          D.P.R. R. 204.2 ("may be permitted").  The plaintiffs assert that          the District of Rhode  Island has promulgated a rule  under whose          clear language pro hac vice admission is not discretionary.  As a                         ____________          result,  the plaintiffs  claim,  the district  court  erred as  a          matter  of law  in  concluding that  it  had discretion  to  deny          Blakey's pro  hac vice admission, or  alternatively, the district                   _____________          court abused whatever discretion it had.                    We  do not consider the  issue of whether  this pro hac                                                                    _______          vice rule, which may be nondiscretionary, nonetheless leaves some          ____          discretion  to deny  admission.   Even  assuming that  discretion          existed, the district court's denial of such admission to  Blakey          was  an abuse  of  that discretion.    The district  court's  two          articulated  grounds  simply  cannot  support its  action.    The          district court stated that "[w]e already have  one pro hac vice .                                                             ____________          . . [and we're] not going to take  more than one on a case."   We          may  take judicial notice of the fact  that the District of Rhode          Island  has  permitted  multiple   pro  hac  vice  admissions  in                                             ______________          proceedings that were contemporaneous with the instant case.  See                                                                        ___                                         -26-          Cohen  v.  Brown   Univ.,  879  F.   Supp.  185  (D.R.I.   1995).          _____      _____________          Furthermore, regarding  expense, in  the instant  case defendants          were represented  by more than  ten attorneys, the  plaintiffs by          two;  additionally, if  the court  was concerned  about excessive          attorney  fees, it could have addressed that matter later, if and          when the plaintiffs submitted their attorney fee application.                    While  it may  be that Blakey  has no right  to pro hac                                                                    _______          vice  admission,  see Leis  v. Flynt,  439  U.S. 438,  452 (1979)          ____              ___ ____     _____          (holding that an attorney does not have a federal right  to state                           ________                                   _____          court pro hac vice  admission), the rights of the  plaintiffs are                ____________          another   matter.    Particularly   here,  where  the  plaintiffs          identified  specific,  logical  reasons  for  their  request,6 we          conclude that  the district  court's decision, based  on criteria          that are not set forth in writing, that do not reasonably support          its  action, and  that do  not appear to  respond to  any general          policy of  the District of Rhode  Island, amounts to an  abuse of          discretion.                                       CONCLUSION                                      CONCLUSION                    As  a  result of  the  foregoing, the  judgment  of the          district court is reversed.  Appellants are allowed costs.                            reversed.                            ________   ____________________________                                        ____________________          6   See,  e.g.,  Kevin Roddy,  RICO  in Business  and  Commercial              ___   ____                 __________________________________          Litigation (1993) (describing Blakey as "the acknowledged author"          __________          of  the federal RICO  statute and of  "excellent" commentaries on          RICO application).                                         -27-                                                        Concurrence Follows                                         -28-                    LYNCH, Circuit Judge, concurring.   At issue is whether                    LYNCH, Circuit Judge, concurring.                           _____________          the plaintiffs have stated  a claim under Rule 12(b)(6),  Fed. R.          Civ.  P.7   The  plaintiffs' complaint  cannot  be dismissed  "if          relief  could be  granted under  any set of  facts that  could be          proved consistent with the allegations."   NOW v. Scheidler,  114                                                     ___    _________          S. Ct. 798, 803 (1994).  The district court  dismissed the claims          because it imported  into RICO  a standing  requirement that  the          plaintiffs must be "innocent  victims."  See Roma Constr.  Co. v.                                                   ___ _________________          aRusso, 906  F. Supp. 78, 81  (D.R.I. 1995).  The  review by this          ______          court of the dismissal is de novo.  Aulson v.  Blanchard, 83 F.3d                                              ______     _________          1, 3 (1st  Cir. 1996).  This ruling, one of  law, was, I believe,          in error.  The  question is, concededly, one of  first impression          here.  Because  I analyze  the matter differently  than does  the          majority, I write separately.                    The question of who has standing to bring actions under          RICO is a matter of federal law.  The pertinent provision of RICO          provides:                      Any  person injured  in  his business  or                      property  by  reason  of  a  violation of                      section  1962 of  this  chapter  may  sue                      therefor in any appropriate United States                      district   court    and   shall   recover                      threefold the damages he sustains and the                      cost of the  suit, including a reasonable                      attorney's fee.            18 U.S.C.    1964(c).   There is no  qualification on  the phrase          "any  person injured  in his business  or property"  limiting the                                        ____________________          7   At oral argument, plaintiffs stipulated that their RICO claim          is not asserted against the town, but only against the individual          defendants.                                         -29-          phrase  to "innocent" persons.   RICO defines a  "person" as "any          individual or  entity capable  of holding  a legal  or beneficial          interest in property."  18 U.S.C.    1961(3).  On the language of          the statute, plaintiffs meet this definition.8                    In general,  the intent  of Congress manifested  in the          text of the statute governs the issue of standing:                      In determining the scope of a statute, we                      look  first  to  its  language.   If  the                      statutory language is unambiguous, in the                      absence    of   "a    clearly   expressed                      legislative intent to the  contrary, that                      language must ordinarily  be regarded  as                      conclusive."          United  States v.  Turkette, 452  U.S. 576,  580 (1981)  (quoting          ______________     ________          Consumer Product  Safety Comm'n v.  GTE Sylvania, Inc.,  447 U.S.          _______________________________     __________________          102,  108  (1980)).   The language  of  RICO should  thus  be the          primary guide  to determining  Congressional intent.   See Sedima                                                                 ___ ______          S.P.R.L.  v. Imrex Co., 473  U.S. 479, 495  n.13 (1985).  Indeed,          ________     _________          the Supreme Court  has consistently  adhered to  the language  of          RICO   in   interpreting  its   meaning   and   rejected  surplus          requirements not  found in  the statutory  language.   See, e.g.,                                                                 ___  ____          Scheidler, 114 S. Ct. at 806  (holding that RICO does not require          _________          an economic  motive behind  the racketeering activity);  Reves v.                                                                   _____          Ernst  & Young, 507 U.S. 170, 177-79 (1993) (looking to statutory          ______________          language  to determine the scope  of RICO liability for "conduct"          or  "participation"); Sedima,  473 U.S.  at 488-92  (holding that                                ______          private actions under RICO  do not require a criminal  conviction                                        ____________________          8   Of  course,  other questions  about  the parameters  of  RICO          standing are not raised by this case, which concerns only whether          there is an "innocent victim" requirement.                                         -30-          on the underlying predicate offenses); Turkette, 452 U.S. at 580-                                                 ________          87 (holding that  the term  "enterprise" as used  in RICO is  not          restricted  to  criminal enterprises);  cf. Holmes  v. Securities                                                  ___ ______     __________          Investor  Protection   Corp.,   503  U.S.   258,  265-69   (1992)          ____________________________          (construing  the  word "injury"  to  require  proximate cause  by          reference to  statutory history  and  judicial interpretation  of          same language in Clayton Act).                    Despite the  lack of any "innocent  victim" requirement          in  the statutory  language, the  district court  relied upon  an          isolated  statement  in  the  legislative history  to  fashion  a          requirement  that only "innocent victims" be allowed to sue.  The          district court's  reliance on  a snippet of  legislative history,          lifted out of  context,9 to  create an absolute  standing bar  to                                        ____________________          9   The court relies on a  statement by Representative Steiger on          October 7,  1970, that  "[i]t is  the intent of  this body,  I am          certain,  to see  that innocent  parties who  are the  victims of          organized  crime have  a right  to obtain  proper redress."   116          Cong.  Rec. 35,346-47  (1970).   That  statement was  made during          debate  over  a proposed  amendment, ultimately  withdrawn, which          would have authorized private injunctive relief.  See Abrams, The                                                            ___         ___          Law of  Civil RICO    1.4,  at 30 (1991).   The  district court's          __________________          characterization  of the remarks  as coming from  "the sponsor of          the  provision that  eventually created  a private  civil remedy"          could cause a  misapprehension.   In fact, RICO  originated in  a          bill filed  in  the Senate,  S.  30.   By  October 7,  1970,  the          Judiciary  Committee had  already reported  out that  bill, which          included  "the  RICO  provision  ultimately  enacted  as  section          1964(c), which  created a treble damage remedy."  Id. at 30.  The                                                            ___          debate in  which Representative  Steiger made the  quoted remarks          was over private injunctive relief.             Further, Representative  Steiger referred,  in  the very  same          remarks  relied  upon  by  the  district  court,  to  victims  of          "organized crime."   Yet it was  clear to both the  House and the          Senate  that  the  reach  of  civil  RICO  extended  well  beyond          organized  crime.   "Congress  knew what  it  was doing  when  it          adopted commodious language capable of extending beyond organized          crime."  H.J.,  Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229,                   ___________    __________________________                                         -31-          anyone  not "innocent," was inappropriate.  "[E]ven if we were to          read this statement to  say what [defendants] say[] it  means, it          would not amount to more than background noise drowned out by the          statutory  language."    Holmes, 503  U.S.  at  269  n.15.   This                                   ______          selection from the legislative  history cannot overcome the plain          text of RICO, which is unambiguous.  It represents "a rather thin          reed upon which to base a requirement . . . neither expressed nor          .  . .  fairly  implied in  the  operative sections  of  [RICO]."          Scheidler, 510 U.S. at 805.  Even were there occasion to consider          _________          the  legislative history  relied upon by  the district  court, it          says only  that the  statute will  protect innocent  victims, not          that the statute will deny standing to those who are not innocent          victims.   See Turkette, 452  U.S. at 591  (noting that "negative                     ___ ________          inference[s]"  need  not be  drawn  from  positive statements  in          legislative history).                    The  Supreme Court  has emphasized  the broad  reach of          RICO's  language:   "If  the defendant  engages  in a  pattern of          racketeering  activity  . .  .  and  the racketeering  activities          injure the  plaintiff in his business or  property, the plaintiff                                        ____________________          246 (1989); see also Sedima, 473 U.S. at 499 ("Congress wanted to                      ________ ______          reach both  'legitimate'  and 'illegitimate'  enterprises.    The          former enjoy neither an inherent incapacity for criminal activity          nor  immunity from its consequences.   The fact that   1964(c) is          used against respected businesses  allegedly engaged in a pattern          of   specifically  identified   criminal  conduct  is   hardly  a          sufficient  reason  for  assuming  that the  provision  is  being          misconstrued." (citation  omitted)); Abrams,  supra,   1.1,  at 5                                                        _____          ("RICO's  name  might suggest  that the  private cause  of action          reaches primarily  racketeers and other organized  crime figures.          Developments  since RICO's  1970  enactment, however,  have  laid          firmly to rest any suggestion of limited reach.").                                         -32-          has  a claim under   1964(c).  There  is no room in the statutory          language for an additional  . . . requirement."  Sedima, 473 U.S.                                                           ______          at 495.  There is nothing  in the language of RICO which suggests          that Congress  intended to  deny standing  to plaintiffs who  are          alleged  to have  committed  bribery or  paid extortion,  whether          under coercion or not.                      Standing    involves   three    analytically   distinct          requirements: injury-in-fact,  a  causal connection  between  the          injury and the conduct  complained of, and whether the  wrong may          be redressed.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-                         _____    _____________________          61  (1992).   All  three elements  of  the standing  inquiry  are          satisfied  on the  pleadings  here.   Plaintiffs have  adequately          alleged  injury-in-fact (financial  loss),  a  causal  connection          (defendants' corruptly demanding payments),  and that the  injury          will be redressed by  a favorable decision (availability of  RICO          damages).   See  Sedima,  473  U.S.  at  496  (noting  that  RICO                      ___  ______          plaintiff  has standing  only  if "he  has  been injured  in  his          business or property by the conduct constituting the violation");          Libertad v. Welch, 53 F.3d 428, 436 (1st Cir. 1995).  This is not          ________    _____          a  case  where the  plaintiffs attempt  to  assert the  rights of          others.   Cf.  Carter v.  Berger, 777  F.2d 1173 (7th  Cir. 1985)                    ___  ______     ______          (county, not individual taxpayers, may sue under RICO for bribery          scheme resulting in underpayment of taxes).  Accordingly, I would          end the standing analysis there.                    In  considering whether there  is an  "innocent victim"          standing  requirement, I  doubt  that Congress  intended for  the                                         -33-          federal  courts to  refer to  and incorporate  state law.10   The          defendants argue  that the innocent  victim requirement is  to be          found  in the  distinction,  found in  some  state laws,  between          bribery and coercive  extortion.  They buttress their argument by          reference to provisions  of the Model Penal Code.   The matter of          whether  the activities  in  which these  plaintiffs engaged  fit          within the category of bribery or of coercive extortion is, in my          view, not relevant to the issue of standing.11                    Although RICO references state law in its definition of          "racketeering  activity,"12 it  makes no  substantive distinction                                        ____________________          10  Caselaw holding  that minority shareholders suffer  no injury          to  their property apart from the  injury the corporation suffers          and so  have no standing to sue under RICO provides no comfort to          defendants.   Such caselaw  does not  support the principle  that          reference should be made  to state law to determine  the contours          of any "innocent victim" defense.  It is true that some decisions          refer to  state law to define property  interests of shareholders          as opposed  to corporations to  determine whether the  former may          bring  a RICO action.   See, e.g.,  Leach v. FDIC,  860 F.2d 1266                                  ___  ____   _____    ____          (5th  Cir. 1988),  cert.  denied, 491  U.S.  905 (1989).    Other                             _____________          caselaw,  including that  of  this circuit,  see Roeder  v. Alpha                                                       ___ ______     _____          Indus., 814 F.2d  22, 29-30  (1st Cir. 1987),  refers to  general          ______          principles  of corporate law to  hold that a  shareholder may not          sue under RICO to vindicate a  duty owed to the corporation.  See                                                                        ___          Rand v. Anaconda  Ericsson, Inc.,  794 F.2d 843,  849 (2d  Cir.),          ____    ________________________          cert. denied, 479 U.S. 987 (1986); Warren v. Manufacturer's Nat'l          ____________                       ______    ____________________          Bank  of  Detroit, 759  F.2d 542,  545  (6th Cir.  1985); Abrams,          _________________          supra,    3.3.6, at 147-52.   In any event, the  issue of whether          _____          state law should be referenced in defining the term "property" is          simply not present in this case.          11  If it were, then I  would agree that on the facts pleaded  it          is impossible  to  draw the  conclusion that  this case  involves          exclusively bribery.          12   This  reference to  state law  is in  the context  of RICO's          definition of  predicate offenses.   From this,  defendants would                                   ________          infer a Congressional desire -- expressed nowhere in  the statute          -- to reference state law with respect to affirmative defenses as                                                                ________          well.                                         -34-          between "bribery"  and "extortion."   RICO  defines "racketeering          activity" in 18 U.S.C.   1961(1)(A) to mean, inter alia, "any act                                                       _____ ____          or  threat involving . . . bribery [or]  extortion . . . which is          chargeable  under State  law and  punishable by  imprisonment for          more than  one  year."   Thus,  the federal  statute  recognizes,          without distinction, acts "involving" either bribery or extortion          as predicate offenses  for purposes  of RICO.   Further, even  in          defining  such a  predicate offense,  state  law plays  a limited          role:                      The labels placed  on a state statute  do                      not   determine   whether  that   statute                      proscribes  bribery  for purposes  of the                      RICO  statute.    Congress  intended  for                      "bribery" to be defined  generically when                      it  included bribery as  a predicate act.                      H.R.  Rep. No. 1549, 91st Cong., 2d Sess.                      (1970), reprinted in 1970 U.S. Code Cong.                              _________ __                      & Admin. News 4007, 4032 ("State offenses                      are  included by  generic designation.").                      Thus, any statute that proscribes conduct                      which  could  be  generically defined  as                      bribery can be the  basis for a predicate                      act.          United States v.  Garner, 837  F.2d 1404, 1418  (7th Cir.  1987),          _____________     ______          cert. denied,  486  U.S. 1035  (1988);  accord United  States  v.          ____________                            ______ ______________          Forsythe,  560 F.2d  1127,  1137  (3d  Cir.  1977).    Here,  the          ________          plaintiffs' complaint also alleges, in addition  to the state law          predicate offense,  a predicate federal offense,  violation of 18          U.S.C.    1951 (wrongful use  of official authority  to obstruct,          delay,  and effect  commercial activity in  interstate commerce).          That statute also does not draw the distinction defendants urge.                    Nonetheless,  standing  issues   aside,  the   question          remains  whether there is some form of requirement in RICO, which                                         -35-          may be tested on a motion to dismiss, that plaintiffs be innocent          victims.   At least two other possibilities  emerge:  that such a          requirement is inherent  in the cause of action or  that it is an          affirmative defense.                    To the extent that  the existence of a cause  of action          is a matter analytically distinct from the issue of standing, see                                                                        ___          Libertad,  53 F.3d at 438 n.5, a  cause of action has been stated          ________          here.13  There is nothing in  the language of RICO which suggests          that  only innocent  plaintiffs  have a  cause  of action.    See                                                                        ___          Scheidler,  114 S.  Ct.  at  806  ("[T]he statutory  language  is          _________          unambiguous and  [the]  legislative history  [evidences] no  such          'clearly expressed legislative intent to the contrary' that would          warrant  a different  construction." (citation omitted)).   Under          the proximate causation test of Holmes, 503 U.S. at 268, there is                                          ______          a  cause of  action stated.14   The damages  alleged here  on the                                        ____________________          13 But  cf. Sunstein, Standing  and the  Privatization of  Public             ________           ___________________________________________          Law,  88. Colum. L. Rev.  1432, 1433 (1988)  (arguing that "[f]or          ___          purposes of  standing, the  principal question should  be whether          Congress has created a cause of action").          14   It may also be,  as the district court  suggested, see Roma,                                                                  ___ ____          906 F. Supp. at 82 n.1, that the plaintiffs' relative culpability          may  be  considered  in  deciding, under  Holmes,  the  issue  of                                                    ______          proximate causation based on the evidence  presented.  See, e.g.,                                                                 ___  ____          Perma Life Mufflers, Inc. v. International Parts Corp.,  392 U.S.          _________________________    _________________________          134,   142-47   (White,   J.,   concurring)   (treating  relative          culpability,  in   antitrust  context,   as  part   of  causation          analysis),  overruled on  other  grounds by  Copperweld Corp.  v.                      _______________________________  ________________          Independence  Tube  Corp., 463  U.S. 752  (1984).   The  issue of          _________________________          proximate  cause may not be  decided at the  pleading stage given          the allegations in this complaint.               Relative culpability may also  be relevant to the  measure of          damages.   The  opinions in  Perma Life  posit that  the benefits                                       _____ ____          received by a plaintiff from its participation in wrongdoing "can          of  course be  taken  into consideration  in computing  damages."                                         -36-          pleadings are  neither remote nor speculative.   These plaintiffs          have  alleged  direct  injury  to their  property,  which  Holmes                                                                     ______          requires.   Holmes, 503  U.S. at 265-69;  see also  id. at 276-86                      ______                        ________  ___          (O'Connor, J., concurring) (analyzing the causation issue as part          of  the standing  issue).   Again, viewing  this as  a matter  of          whether  there is  an "innocent  victim" requirement  inherent in          stating  a  cause  of  action, I  do  not  believe  state law  is          pertinent.                    The  district  court  opinion also  suggests  that  the          "innocent  victim" argument  may be  available as  an affirmative          defense.    If so,  there are  a range  of possibilities  for the          contours of the  defense.  The range includes  a sort of absolute          defense if the plaintiff  has done anything wrong, which  is what          the district court thought and  to which it applied the label  of          an in pari delicto  defense.15  At the other end of  the range is             __ ____ _______          the  position  that  the  relative  guilt  of  the  plaintiff  is          irrelevant.   That,  I  believe, cannot  be  so,16 and  even  the                                        ____________________          Perma Life,  392 U.S.  at 140;  see also  II Areeda &  Hovenkamp,          _____ ____                      ________          Antitrust Law  365c3, at 248 (1995 rev. ed.).          _____________          15    This common  law  defense derives  from  the Latin  in pari                                                                    __ ____          delicto  potior est conditio defendentis:  "In a case of equal or          _______  ______ ___ ________ ___________          mutual fault .  .   . the condition  of the [defending] party  is          the better one."  Black's Law Dictionary 791 (6th ed. 1990).  The                            ______________________          in pari delicto defense, though "[i]n its classic formulation . .          __ ____ _______          . narrowly limited  to situations where the  plaintiff truly bore          at least substantially equal responsibility for his injury . . ."          is  now generally given "a broad application to bar actions where          plaintiffs simply  have been involved generally in 'the same sort          of wrongdoing'  as defendants."  Bateman  Eichler, Hill Richards,                                           ________________________________          Inc.  v. Berner, 472 U.S. 299, 306-07 (1985) (quoting Perma Life,          ____     ______                                       _____ ____          392 U.S. at 138).          16  See, e.g., discussion in footnote 14 supra.              ___  ____                            _____                                         -37-          plaintiffs do not  argue that position.   While some  affirmative          defenses,  such as the statute of limitations, may on occasion be          decided on the pleadings, the assertion of an affirmative defense          here would not afford a basis to dismiss the complaint under Rule          12(b)(6).  Under  any of  the plausible articulations  of such  a          defense,  the inferences to be drawn  from the facts pled here do          not permit dismissal.                    I would  reject the  proposition, urged  by defendants,          that an absolute in pari delicto defense is embedded in RICO.  In                           __ ____ _______          construing  the language of RICO, the Supreme Court has looked to          precedent  under the Clayton Act, the statute upon which RICO was          modeled.   See Holmes, 503 U.S. at 268 ("We may fairly credit the                     ___ ______          91st   Congress,   which   enacted   RICO,   with   knowing   the          interpretation  federal   courts  had  given  the  words  earlier          Congresses  had used first in [the Sherman Act], and later in the          Clayton  Act's   4.   It  used the  same words,  and we  can only          assume that it intended them to have the same meaning that courts          had  already  given them."  (citations  omitted)).   The  Supreme          Court, in Perma Life Mufflers, Inc. v. International Parts Corp.,                    _________________________    _________________________          392  U.S.  134, 138-40  (1968),  overruled  on other  grounds  by                                           ________________________________          Copperweld Corp. v. Independence Tube Corp., 463 U.S. 752 (1984),          ________________    _______________________          explicitly  rejected the existence of  an in pari delicto defense                                                    __ ____ _______          under the Clayton Act.   In Pinter v. Dahl, 486 U.S.  622 (1988),                                      ______    ____          the  Court  reaffirmed  that  in   its  contemporary  "broadened"          construction,  precisely the  construction  contemplated  by  the          district  court  here,  the  in  pari  delicto  defense  "is  not                                       __  ____  _______                                         -38-          appropriate   in  litigation  arising  under  federal  regulatory          statutes."  Id. at 632; see Sullivan v. National Football League,                      ___         ___ ________    ________________________          34 F.3d 1091, 1107-09 (1st  Cir. 1994), cert. denied, 115 S.  Ct.                                                  ____________          1252  (1995).  For the  same reasons, an  "unclean hands" defense          would  seem  to be  unavailable, as  it is  not  a defense  to an          antitrust  treble  damage  action.   See  Kiefer-Stewart  Co.  v.                                               ___  ___________________          Seagram  & Sons,  340 U.S.  211, 214  (1951), overruled  on other          _______________                               ___________________          grounds  by Copperweld Corp. v. Independence Tube Corp., 463 U.S.          ___________ ________________    _______________________          752  (1984);  see also  Simpson  v. Union  Oil  Co., 377  U.S. 13                        ___ ____  _______     _______________          (1964).                    That  there is no in pari delicto defense does not mean                                      __ ____ _______          there is  no defense at  all in which  the relative guilt  of the          plaintiffs  may be weighed.  It is  far more likely that there is          in RICO  an  "equal involvement"  defense similar  to the  "equal          involvement" defense  recognized under  the Clayton Act  in Perma                                                                      _____          Life.17   Recognition of such a defense, patterned on the Clayton          ____                                        ____________________          17  In  Perma Life,  five concurring Justices,  in four  separate                  __________          opinions,  recognized  the  existence  of  the equal  involvement          defense.  Justice White wrote that he "would deny recovery  where          plaintiff and defendant  bear substantially equal  responsibility          for [the] injury  resulting to one of them . .  . ."  392 U.S. at          146 (White, J., concurring).   According to Justice Fortas, "[i]f          the fault of the  parties is reasonably within the  same scale --          if the  'delictum' is approximately  'par' --  then the  doctrine                   ________                     ___          should  bar recovery."  392 U.S. at 147 (Fortas, J., concurring).          Justice Marshall wrote that he "would hold that where a defendant          in  a private antitrust suit can show that the plaintiff actively          participated in  the formation  and implementation of  an illegal          scheme,  and is  substantially  equally at  fault, the  plaintiff          should  be barred from imposing liability on the defendant."  392          U.S.  at 149 (Marshall, J.,  concurring).  Justice  Harlan, in an          opinion  joined by  Justice Stewart,  indicated that  the defense          should   be  allowed   in  cases   where  "the   plaintiffs  were          substantially  as much responsible . . . as the defendants."  392          U.S. at 156  (Harlan, J.,  concurring in part  and dissenting  in                                         -39-          Act  defense,  was  extended  to securities  actions  in  Bateman                                                                    _______          Eichler,  Hill Richards,  Inc. v.  Berner, 472  U.S. 299,  306-11          ______________________________     ______          (1985).  The equal involvement defense is more demanding of those          asserting it than the  in pari delicto defense and  only bars the                                 __ ____ _______          claims of  a  plaintiff who  "truly bore  at least  substantially          equal responsibility [as the defendant] for the violation" of the          federal law at issue.  Id. at 308.                                 ___                    This circuit  has also recognized an  equal involvement          defense  in antitrust  actions.   Sullivan, 34  F.3d at  1107 ("A                                            ________          plaintiff's   'complete,   voluntary,  and   substantially  equal          participation' in  an illegal  practice under the  antitrust laws          precludes recovery  for that antitrust  violation." (quoting CVD,                                                                       ____          Inc. v. Raytheon Co.,  769 F.2d 842, 856  (1st Cir. 1985),  cert.          ____    ____________                                        _____          denied, 475 U.S. 1016 (1986))).          ______                    Testing the  allegations of  the complaint  against the          Supreme Court's  articulation of  the equal  involvement defense,          this complaint  survives  a Rule  12(b)(6)  motion.   Under  that          defense:                      a private action for damages . . . may be                      barred on the  grounds of the plaintiff's                      own  culpability  only  where  (1)  as  a                      direct  result  of his  own  actions, the                      plaintiff  bears  at least  substantially                      equal  responsibility for  the violations                      he seeks to  redress, and (2)  preclusion                      of suit would not significantly interfere                      with the effective enforcement  of [RICO]                      and the protection of the . . .  public.                                        ____________________          part).                                         -40-          Bateman,  472 U.S. at  310-11.  Both  the Supreme Court  and this          _______          court  have  cautioned  against  deciding such  defenses  in  the          absence of factual development.   See id. at 311 n.21 ("We  note,                                            ___ ___          however,  the  inappropriateness  of  resolving  the question  of          respondents'  fault solely on  the basis  of the  allegations set          forth in the complaint."); Sullivan, 34 F.3d at 1109 ("Ultimately                                     ________          . . . these are factual questions for the jury . . . .").                    The  defendants make  a misplaced  attempt to  argue in          favor of  the more defendant-helpful  in pari delicto  defense by                                                __ ____ _______          relying on Tafflin v. Levitt, 493 U.S. 455 (1990).  Tafflin, they                     _______    ______                        _______          urge,  weakens the  analogy  of RICO  to  the Clayton  Act,  and,          therefore, to  the equal involvement  defense.   In Tafflin,  the                                                              _______          Court held that RICO  did not vest exclusive jurisdiction  in the          federal  courts where the language of the statute did not purport          to do so and  the legislative history did not  show that Congress          addressed the question.   Id. at 460-62.  The  Court rejected the                                    ___          argument  that it should derive such an exclusivity from the fact          that actions under the Clayton Act may only be brought in federal          court.   Id. at 462-63.   The analogy to the Clayton  Act did not                   ___          provide the  answer because  Congress was  also presumed  to have          operated  against a  backdrop of  well-established  law governing          when there was  exclusive federal jurisdiction.   Id. at  459-60.                                                            ___          There  is  no  such  "judicial default  rule"  which  operates in          defendants' favor  here.  Cf.  Landgraf v. U.S.I.  Film Products,                                    ___  ________    _____________________          114 S. Ct. 1483,  1505 (1994) (discussing judicial  default rules          in the context of retroactivity of statutes).                                         -41-                    Similarly, there  is no  comfort for defendants  in the          Supreme  Court's  rejection  in  Sedima  of  application  of  the                                           ______          "antitrust injury" rule  to RICO.   "[T]his is  so because  'RICO          injury'  would [otherwise] be  an unintelligible requirement, not          because there is no parallel between  the two statutes."   Carter                                                                     ______          v.  Berger, 777  F.2d  1173, 1176  (7th  Cir. 1985)  (noting  the              ______          Court's remark in Sedima, 473 U.S. at 489-90 & n.8, that Congress                            ______          relied on the analogy to antitrust).                    Indeed, RICO was enacted in  1970, after the Perma Life                                                                 __________          decision, of which Congress was undoubtedly aware.  The modelling          of  RICO  on the  Clayton Act  was done  against the  backdrop of          judicial recognition of an equal involvement defense.   The piece          of  legislative history relied upon  by defendants, to the extent          it  should be considered  at all, may be  equally read to support          the proposition  that Congress implicitly allowed  an affirmative          equal involvement defense as under the Clayton Act.                    But defendants do  have a  point.  The  analogy to  the          Clayton Act is not perfect.  Indeed, the American Bar Association          report from which the civil RICO provisions emerged suggests that          not all the accoutrements  of the Clayton Act should  be imported          into  RICO.   See 115  Cong. Rec.  6995 (1969) (Report  of A.B.A.                        ___          Antitrust Section); Abrams, supra,   1.4, at  25-26.  This may be                                      _____          a  situation where  Congress did  not explicitly  contemplate the          question and so congressional "intent" in the classic formulation          simply does  not  exist.   The  courts  then are  left  with  the          delicate task of providing the answer.                                         -42-                    I  very  much  doubt  that the  federal  definition  of          "innocence" for  purposes of the equal  involvement defense would          ordinarily involve  reference to and incorporation  of state law,          as the  majority asserts.18   The Supreme Court  did not look  to          state law to define the defense  in either Perma Life or Bateman,                                                     _____ ____    _______          nor should we do so here.  Nor has this court looked to state law          to define the defense under  the Clayton Act in the  aftermath of          Perma Life.          _____ ____                    To say there  is some form of  affirmative defense like          the  equal involvement  defense does  not describe  precisely the          content of such  a defense.  Even  the Supreme Court Justices  in          Perma Life did not agree on  the content.  See supra footnote 17.          _____ ____                                 ___ _____          In the absence of  factual findings in which to set the questions          of the  honing  of such  a  defense,  there is,  and  should  be,          reluctance  to engage now in  such refinement.   The precision of          any standard awaits further development.  It is enough now to say          that  the positions  at the  extremities  -- that  any wrongdoing          disables  a plaintiff  or that  wrongdoing is  irrelevant --  are          untenable.                                        ____________________          18  There may be situations, not present here, in which the state          has  such   an  exceptionally  strong  policy   interest  in  the          enforcement of  its  own  laws  that  Congress  would  choose  to          accommodate  that interest in the  RICO enforcement scheme.  This          may be  more true under  RICO than other  statutes in as  much as          Congress has  referred  to violations  of state  law in  defining          predicate offenses under  18 U.S.C.    1961(1)(A).  However,  the          recognition of an interest  in enforcement is not the same as the          recognition  of an  interest  in a  defense.   The  Rhode  Island          bribery  and   extortion  statutes   do  not  evidence   such  an          overwhelming interest in affording  defendants an in pari delicto                                                            __ ____ _______          defense, even before reaching the issue of whether Congress would          have wanted to import Rhode Island law into RICO.                                         -43-                    The  equal involvement  defense  recognized  under  the          Clayton  Act and  the Securities  Act derives  its contours  from          federal  policy as recognized by  federal statutes.   There is no          reason not to apply that paradigm to RICO.19                    As to the claim under 42 U.S.C.    1983, the plaintiffs          have adequately alleged that the harm they suffered was caused by          the  extortionist  policies  and  practices  in  which  the  town          officials are claimed  to have engaged.  Again, there  is no need          to  delve into  the  distinction between  coercive extortion  and          bribery.                                        ____________________          19    The district  court  was  very troubled  by  the  notion of          rewarding people  who pay  bribes to public  officials with  RICO          treble damages, whatever the circumstances of the payment.  Roma,                                                                      ____          906 F. Supp. at 82-83.   That is certainly a  reasonable concern.          Policy arguments may be  made both for and against such a result.          In  the antitrust field, the Supreme Court has noted that because          of the "important public purposes" served by private suits, it is          inappropriate  to invoke  "broad common-law barriers  to relief."          Perma  Life, 392 U.S. at 138.   Thus "the plaintiff who reaps the          _____  ____          reward of  treble damages may  be no  less morally  reprehensible          than  the defendant, but the  law encourages his  suit to further          the  overriding public policy in  favor of competition."   Id. at                                                                     ___          139.              This strong  enforcement rationale  certainly  is present  in          RICO,  a statute  intended  to increase  the  arsenal of  weapons          striking at criminal activity.  In addition, it may be inherently          unfair  to deny  plaintiffs any  ability to  pursue a  RICO claim          where their  fault is relatively  small.   An absolute  "innocent          victim" requirement would create such an undesirable imbalance.                                                     -44-
