## Facts

- James E. Busher was a defense contractor who owned 92% of ATL, Inc., a Hawaii construction company that performed extensive work for the U.S. Department of Defense.
- Busher controlled a Nevada corporation, J.W. Contracting Co., which ATL used as a purported subcontractor to receive payments under Defense Department contracts.
- Federal authorities investigated Busher for false claims, conspiracy to defraud the United States, and mail fraud connected to ATL’s Defense Department contracting; the investigation later expanded to tax evasion and filing false tax returns.
- Busher testified before a grand jury in early 1984.
- A jury convicted Busher of RICO violations and multiple related offenses, including false statements, false claims, mail fraud, tax evasion, and filing false income tax returns.
- Based on the RICO conviction, the district court ordered forfeiture of Busher’s entire interests in ATL, J.W. Contracting, and certain Nevada real estate acquired through J.W. Contracting.
- Busher received concurrent prison sentences, including four years on the RICO counts.

## Issues

1. Whether prosecutorial misconduct required dismissal of the indictment because the prosecutor did not inform Busher, before his grand jury testimony, of all charges the government might pursue.
2. Whether RICO was improperly used to pursue racketeering charges where the overall misconduct included tax violations that are not listed as RICO predicate acts.
3. Whether forfeiture of Busher’s entire interests in the companies and real estate was so disproportionate to his criminal conduct that it violated the Eighth Amendment.

## Decision

- The Ninth Circuit affirmed Busher’s convictions.
- The court rejected the prosecutorial-misconduct claim, holding that advance disclosure of all potential charges was not required and that dismissal was unwarranted absent sufficient prejudice or flagrant misconduct.
- The court upheld the RICO theory because the government proved qualifying predicate acts (including mail fraud and false statements/claims), even if tax offenses were also involved in the broader course of conduct.
- The court vacated the forfeiture order and remanded for reconsideration, concluding that sweeping forfeiture of entire business interests may be excessive punishment under the Eighth Amendment and required proportionality analysis.

## Legal Principles

- Dismissal of an indictment for alleged grand jury irregularities is an extraordinary remedy; absent prejudice or serious misconduct, failures to provide a witness advance notice of all possible charges do not justify dismissal.
- RICO liability requires proof of a “pattern of racketeering activity” consisting of at least two statutorily enumerated predicate acts; the presence of non-predicate crimes (such as tax offenses) does not bar RICO prosecution if the required predicates are proven.
- Criminal forfeiture under RICO is punitive and is subject to Eighth Amendment limits; forfeiture must bear a reasonable relationship to the gravity and extent of the racketeering conduct.
- When an enterprise has substantial lawful operations, forfeiture of an entire ownership interest may raise a serious proportionality problem and requires careful evaluation by the sentencing court.

## Conclusion

The Ninth Circuit left Busher’s RICO and related convictions intact, but required renewed scrutiny of the forfeiture remedy, holding that RICO forfeiture is punishment and may not be imposed in a scope that is disproportionate to the racketeering proved.


United States v. Busher, 817 F.2d 1409 (9th Cir. 1987)