The Following Rough Guide to the Gang Racketeering Case in Utah was authored by Utah Criminal Defense Attorney Sam Meziani, who obtained his B.A. from the University of Utah and his J.D. from Loyola University Chicago School of Law.
The Racketeer Influenced Corrupt Organizations Act (RICO) is a statute well-known by lawyers and laymen alike. The acronym evokes images of the Italian mafia in New York and Chicago, bribery of government and union officials, illegal gambling, protection fees, and like. Congress enacted RICO in 1970 for the lofty purpose of eradicating organized crime in the United States “It is the purpose of this Act to seek the eradication of organized crime in the United States…by providing enhanced sanctions and new remedies….” In 1983, the Supreme Court stated “the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.”
High profile RICO prosecutions have included the bosses of the major New York mafia families in the “Commission” case, in which the majority of the defendants received prison sentences of one-hundred years. Although Congress had sophisticated mafia organizations in its sight when passing the Act, the Department of Justice has used the vast powers created by the Act to target all manner of criminal organizations, including the most unsophisticated street gangs. In this Circuit for example, the government prosecuted a gang reported to be a youth “bicycle gang,” (not a motorcycle gang) in which a CJA lawyer, Paul McCausland of Wichita, Kansas, obtained a not-guilty verdict on RICO charges. In this District, the government has prosecuted the King Mafia Disciples (02CR289TC), Soldiers of Aryan Culture (03CR933TS), Tiny Oriental Posse (06cr460TC), and most recently, the Tongan Crip Gang (08CR758TC) (2010 Superseding RICO indictment). The CJA Panel can expect additional prosecutions. The FBI in Utah operates a task force “that will aim to dismantle gangs by pursuing federal anti-racketeering indictments.” Numerous law enforcement jurisdictions are participating in the FBI task force, including Salt Lake City Police, Sandy, and West Jordan. If the current rate is any indication, another is due around 2013.
RICO gang prosecutions typically involve subsections (c) and (d). 18 U.S.C. §1962(c) makes it a crime to participate in the affairs of an enterprise through a pattern of racketeering activity. A RICO conspiracy, §1962(d), requires proof of an agreement to violate a substantive RICO provision, in most cases subsection (c)— in other words, an agreement to participate in the affairs of an enterprise through a pattern of racketeering activity.
A. The Enterprise
The concept of “the enterprise” is the heart of RICO. It is difficult to over-state the breadth of the enterprise concept. “Congress intended to replace the ‘wheel’; and ‘chain’ concepts of traditional conspiracy law, with a new statutory concept, the enterprise.” United States v. Carter, 721 F.2d 1514 (11th Cir. 1984). For example, in addressing multi-faceted conspiracies, prior law spoke in terms of a “hub and spoke” and conspiracies consisting of wheels without “rims.” The enterprise concept blew these old ideas aside. Now, anyone associated with the “enterprise” is subject to prosecution as a conspirator, without regard to knowledge of otherwise “distinct” conspiracies.
An “association in fact” enterprise must have at least three structural features (1) purpose, (2) relationship, and (3) longevity. Boyle v. United States, 556 U.S. 938 (2009). Boyle reiterated the idea that an enterprise need not have a hierarchical or sophisticated structure. Although RICO requires that the enterprise have a “structure,” the Supreme Court held that evidence of the “structure” of the association can “coalesce” with evidence of the racketeering activity. In other words, arguments that an enterprise must use means and methods such as hand signals, handbooks, rules and regulations, regular meetings etc. will likely fail. “The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex or unique; for example, a group that does nothing but engage in extortion through old-fashioned unsophisticated, and brutal means may fall squarely within the statute’s reach.” Id.
B. The Pattern
The “pattern” element requires at least two acts of racketeering activity. 18 U.S.C. §1961(5). Racketeering activity is defined as any act or threat involving murder, kidnapping, gambling, arson, bribery, robbery, extortion, or dealing in obscene matter or a controlled substance, together with a vast list of additional crimes ranging from misuse of a passport to criminal infringement of copyright. 18 U.S.C. §1961(1).
Although two (2) acts are the minimum required to establish a pattern, two acts are not necessarily sufficient. Sedima v. Imrex, 473 U.S. 479, 497 (1985). “Section 1961(5) concerns only the minimum number of predicates necessary to establish a pattern; and it assumes that there is something to a RICO pattern beyond simply the number of predicate acts involved. The legislative history bears out this interpretation, for the principal sponsor of the Senate bill expressly indicated that ‘proof of two acts of racketeering activity, without more, does not establish a pattern.’ 116 Cong. Rec. 18940 (1970) (statement of Sen. McClellan).” Section § 1961(5) does not identify, though, these additional prerequisites for establishing the existence of a RICO pattern.” H.J. Inc. v. Northwestern Bell, 492 U.S. 229, 238 (1989). To establish a pattern, the government must establish “continuity plus relationship” Id. The Court held there are two types of continuity: closed-ended and open-ended. Closed-ended continuity is a series of related predicates “extending over a substantial period.” Open-ended continuity depends on “whether the threat of continuity is demonstrated.”
If these concepts seem vague and unworkable, you are not alone. In a dissent joined by Justices O’Connor and Kennedy, Justice Scalia attacked the concepts as intolerably vague when applied to RICO: “Today, four years and countless millions in damages and attorney’s fees later (not to mention prison sentences under the criminal provisions of RICO), the Court does little more than repromulgate those hints as to what RICO means, though with the caveat that Congress intended that they be applied using a ‘flexible approach.’”
Despite the vagueness of the case law, defense counsel should not ignore these elements in jury instructions. For example, it may be that two random and isolated beer run robberies simply do not amount to a threat of continued criminal activity, and therefore do not form a pattern.
C. The Conspiracy
“The relevant statutory phrase in §1962(d) is ‘to conspire.’” Salinas v. United States, 522 U.S. 52, 63 (1997). In passing RICO, “Congress acted against the backdrop of hornbook conspiracy law.” United States v. Elliott, 571 F.2d 880, 902 (11th Cir. 1978). The phrase “to conspire” incorporates traditional conspiracy law: “We presume Congress intended to use the term in its conventional sense.” Salinas, 552 U.S. at 63. The “essence” of a conspiracy is an agreement between two persons. United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009). The Tenth Circuit pattern jury instructions on conspiracy, for example, instruct: “First: the defendant agreed with at least one other person to violate the law.” (Instruction §2.19; 18 U.S.C. §371).
The agreement proscribed by RICO is the agreement to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of Subsection (c). 18 U.S.C. §1962(d); Salinas, 522 U.S. at 63. The government must prove the defendant, and at least one other person, agreed to participate in the affairs of the enterprise through a pattern of racketeering activity. Salinas, 522 U.S. at 63. The government must therefore prove the defendant and one (1) other person agreed to the commission of at least two (2) racketeering acts. However, the agreement need not be that the defendant agreed to personally commit a pattern or predicate crimes.
D. The “James Hearing”
In order to determine whether the co-conspirator hearsay exception in Fed. R. Evid. 801(d)(2)(E), applies, the court must determine that a conspiracy existed, that both the declarant and the defendant against whom the declaration is offered were members of the conspiracy, and the statement was made in the course of and in furtherance of the conspiracy.” United States v. Thornburgh, 645 F.3d 1197, 1210 (2011).
The Tenth Circuit has stated that the “strongly preferred order of proof in determining the admissibility of an alleged coconspirator statement is first to hold a ‘James hearing,’…outside the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy.” United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994).
E. The “Gang Expert”
The government’s gang expert will arguably be the most important witness in the case. Certainly, there will be important percipient fact witnesses, but the gang expert has the power to pull the entire wide-ranging case, with numerous predicates extending over many years, together in a cogent and compelling way.
The danger posed by the gang expert is in direct correlation to the enterprise concept. The enterprise is a dangerous concept because it threatens to ensnare those without a genuine criminal association or commitment to the enterprise, but who nevertheless are “associated in fact.” Even for genuine gang members, if allowed to testify that a defendant is a member of an enterprise or associated with an enterprise, the government gang expert has all but expressed an expert opinion that the defendant is guilty of gang racketeering. Another deadly tactic of the government gang expert is to express opinions on factual matters well within the ken of the jury, but without the compelling imprimatur of law enforcement “expert” testimony.
The government’s expert typically has years of experience, and a wealth of factual knowledge of the gang and its members. Such an expert will typically have the requisite “specialized knowledge” required by Rule 702. But the issue is not experience and qualifications. The issue is whether the expert testimony genuinely assists the trier of fact in understanding the issues beyond its ordinary understanding, or whether the testimony amounts to a damning summary of the facts supporting guilt.
At least two courts in RICO cases have excluded government “gang expert” testimony. In United States v. Cerna, 08CR730, *5 (N.D. Ca. 2010) (Dkt. #2781), the court explained the dilemma, and why “experience” alone is not dispositive:
[The police officers] have extensive law enforcement experience with MS-13. Experience alone, however, is not all that is required. For one thing, expert testimony is only appropriate where the matters touched upon are beyond the ken of the average layperson’s understanding. Allowing the government to prove up elements of the offense through police opinion would shift the responsibility for assessing fact evidence from the jury to the police. More specifically, here it would allow the government to prosecute by simple syllogism: first through expert opinion, the government would show MS-13 was a violent racketeering organization. Second, the government would show any given defendant was a member or associate of MS-13. In this way not more fact evidence than a few tattoos would be necessary to convict all accused.
Cerna relied on the Second Circuit’s decision in United States v. Mejia, 545 F.3d 179, 183 (2d. Cir. 2008), which contains an in-depth analysis and discussion of the emergence of the police officer “gang expert” in federal gang prosecutions. Mejia drew a line between the acceptable use of a police officer expert— to translate anthropological evidence beyond the understanding of the average juror, such as gang terms, jargon, coded conversations, and other “valuable knowledge about [the gang’s] parochial practices and insular lexicon,” and the improper use of expert testimony— providing a summary of the factual evidence.
The first step in addressing improper expert testimony is with proper notice of the expert opinion. The government will not provide proper notice. Fed. R. Crim. P. 16(a)(1)(G), requires that the government “give to the defendant a written summary of [expert testimony]. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” (emphasis added). The government’s culture and practice is apparently to provide insufficient disclosures. Most likely, you will receive a disclosure that identifies broad topics instead of specific opinions. For example, the disclosure might state the government intends to introduce expert testimony on “the rules of the gang,” and “the discipline imposed by the gang for breaking rules.” What are the rules of the gang? What is the discipline imposed? Such a disclosure fails to comply with the rule. For a good argument of why a disclosure of mere topics is insufficient, see the government’s argument in the high-profile Nacchio case, in which the government attacked the defendant’s expert disclosures. U.S. v. Nacchio, 1:05-cr-00545, D. Colo., Dkt. ##297, 334.
1.Russello v. United States, 464 U.S. 16, 26 (1983)
3.United States v. Salerno, 868 F.2d 524, 527 (2d. Cir. 1989). The statutory maximum sentence for RICO is twenty years, or life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment. 18 U.S.C. §1963(a).
4.Nate Carlisle, Gang Fighting Tactics Shift, Salt Lake Tribune, October 19, 2010.
6.See, e.g., Katteakos v. United States, 328 U.S. 750, 756 (1946).
7.An enterprise “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” United States v Id. at 251.
8.To date, there is no Tenth Circuit pattern instruction on RICO conspiracy.
9.Zero Down v. Global Transp., 2008 U.S. Dist. LEXIS 84722, *14 (D. Utah) (Campbell, J.) (“Subsection (d) of §1962 prohibits conspiring to violate any of these subsections”).
10. 452 U.S. 576, 583 (1981).
11.See also United States v. Neopolitan, 791 F.2d 489, 499 (7th Cir. 1986) (“In a RICO conspiracy, as in all conspiracies, agreement is essential”); United States v. Santiago, 214 F. Supp. 2d 421, 425 (S.D.N.Y. 2002) (jury instruction provided “…that defendant knowingly and willfully agreed with at least one other person”); United States v. Vigil, 2006 U.S. Dist. LEXIS 95629, *47 (D.N.M.) (same).
12.Full disclosure: the author moved to exclude the government’s gang expert, Break Merino, in the TCG case, 08cr758 (Dkt. # 541).
13. See also United States v. Cerna, 2010 U.S. Dist. LEXIS 62907 (N. D. Ca. 2010) (holding that expert testimony may not be used to prove the way MS-13 operated and its structure).