is now even more clearly at odds with Supreme Court precedent as
demonstrated by Reves and Scheidler.  This court's interpretation
of  1962(c)'s distinctiveness requirement must therefore be
brought in line with binding Supreme Court precedent.
                               E.
          We are thus left with the question: what remains of the
statutorily-based distinctiveness requirement after Reves and
Scheidler?  As we have stated, this requirement originates in the
statute's textual directive that  1962(c) liability requires
conduct by defendant "persons" acting through an "enterprise."
In this regard, we conclude that the essential holding of Enright
remains undisturbed -- a claim simply against one corporation as
both "person" and "enterprise" is not sufficient.  Instead, a
viable  1962(c) action requires a claim against defendant
"persons" acting through a distinct "enterprise."  But, alleging
conduct by officers or employees who operate or manage a
corporate enterprise satisfies this requirement.  A corporation
is an entity legally distinct from its officers or employees,
which satisfies the "enterprise" definition of 18 U.S.C.A.
 1961(4).  This section provides that "`enterprise' includes any
individual, partnership, corporation, association or other legal
entity."  18 U.S.C.A.  1961(4) (emphasis added).  Accordingly,
Jaguar has satisfied the distinctiveness requirement of
 1962(c).  Jaguar has not brought a claim against Royal Oaks,
but instead seeks recovery from the defendants, as persons
operating and managing the Royal Oaks enterprise through a
pattern of racketeering activity.
          We recognize that this court has, at times, supported
its infiltrating-racketeer reading of subsection (c) by resort to
the notion that "[s]uch an interpretation avoids the absurd
result that a corporation may always be pled to be the enterprise
controlled by its employees or officers."  Glessner, 952 F.2d at
713.  Informed by the teaching of Reves and Scheidler, however,
we do not believe that allowing a  1962(c) action against
officers conducting a pattern of racketeering activity through a
corporate enterprise yields an "absurd result."  In such an
action, the plaintiff can only recover against the defendant
officers and cannot recover against the corporation simply by
pleading the officers as the persons controlling the corporate
enterprise, since the corporate enterprise is not liable under
 1962(c) in this context.  Instead, a corporation would be
liable under  1962(c), only if it engages in racketeering
activity as a "person" in another distinct "enterprise," since
only "persons" are liable for violating  1962(c).  Petro-Tech,
824 F.2d at 1358.
          This interpretation of the distinctiveness requirement
of  1962(c), not only accords with binding Supreme Court
precedent, as described above, but also is supported by the
interpretation adopted by all other circuits that have addressed
the question.  In United States v. Robinson, 8 F.3d 398 (7th Cir.
1993), for example, the Seventh Circuit was faced with a set of
circumstances similar to those in this case.  There, criminal
RICO charges were brought under  1962(c) against the officers
and controlling shareholders of Renoja, a corporation that
operated as a Wendy's franchise.  The defendants engaged in a
fraudulent scheme to defraud their franchisor, Wendy's
International ("Wendy's"), by misstating the amount of their
gross sales in order to avoid paying Wendy's the required royalty
percentage.  The court, focusing on whether the defendant persons
and the corporation were distinct legal entities, rejected the
defendants' claim that the government had failed to satisfy the
distinctiveness requirement of  1962(c):
          Robinson was charged with improperly
          conducting Renoja's activities, not his own
          activities. Robinson's claim that he and
          Renoja are inseparable entities is meritless.
          . . . Renoja was an incorporated business that
          employed several hundred people and filed
          separate income tax returns. Robinson and
          Renoja were not the same entity.
Robinson, 8 F.3d at 407.
          In reaching its conclusion, the Robinson panel relied
on an earlier opinion by then Judge Posner in McCullough v.
Suter, 757 F.2d 142, 144 (7th Cir. 1985), which held that an
unincorporated sole proprietorship was a distinct enterprise from
its owner because it employed several individuals.  In
McCullough, Judge Posner had recognized that, if the sole
proprietor had incorporated his business, the corporation could
then properly be treated as an "enterprise" under  1962(c) even
if it employed no one else.  Id. at 144 ("If [a] one-man band
incorporates, it gets some legal protections from the corporate
form, such as limited liability; and it is just this sort of
legal shield for illegal activity that RICO tries to pierce.").
This result followed from the conjunctive definition of
"enterprise" which includes both "legal entit[ies] and any . . .
group of individuals associated in fact although not a legal
entity."  18 U.S.C.A.  1961(4) (emphasis added).  Thus, Judge
Posner concluded, "[t]he only important thing is that it [the
enterprise] be either formally (as when there is incorporation)
or practically (as when there are other people besides the
proprietor working in the organization) separable from the
individual."
          In accord with Robinson is Sever v. Alaska Pulp Corp.,
978 F.2d 1529 (9th Cir. 1992), where the Ninth Circuit considered
a  1962(c) claim by a former timber company employee against the
officers of his former incorporated employer.  The plaintiff
there alleged that the officers, acting through a corporate
enterprise, blacklisted him for giving unfavorable testimony to a
Congressional Subcommittee.  The district court dismissed the
action on the grounds that there was "no distinction between the
officers, agents and employees who operate the corporation and
the corporation itself."  Id. at 1534.  Addressing this argument,
the Ninth Circuit held that a corporation was by legal definition
an enterprise distinct from its officers or employees:
          This decision makes it clear that the
          inability of a corporation to operate except
          through its officers is not an impediment to
          section 1962(c) suits.  That fact poses a
          problem only when the corporation is the named
          defendant - when it is both the "person" and
          the "enterprise." In this case, however,
          [plaintiff] named the several individual
          officers as defendants/persons, and [the
          corporation] as the enterprise. Therefore, he
          has satisfied this allegation requirement.
Sever, 978 F.2d at 1534.  Also in accord are Davis v. Mutual Life
Ins. Co., 6 F.3d 367, 377-78 (6th Cir 1993), and Bennett v. Berg,
685 F.2d 1053, 1061 (8th Cir. 1982), aff'd en banc 710 F.2d 1361
(8th Cir.), cert. denied, 464 U.S. 1008 (1983).
          In sum, we conclude that when officers and/or employees
operate and manage a legitimate corporation, and use it to
conduct, through interstate commerce, a pattern of racketeering
activity, those defendant persons are properly liable under
 1962(c).
                             III.
          In addition to challenging the legal sufficiency of his
RICO violation based on the distinctiveness requirement,
Theodore, Sr. ("Theodore") contends that insufficient evidence
was presented at trial to support the jury's finding that he was
liable of the predicate acts of mail fraud.  The district court
--- FMail/386 1.0g
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