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Twenty Years Imprisonment for RICO Defendants Only If Special Findings by a Jury

March 20, 2014

U.S. v. Nagi, 541 Fed. Appx. 556 (6th Cir. 2013)

In Nagi, the U.S. Court of Appeals for the Sixth Circuit remanded for sentencing two defendants (Clark and Moore) who were convicted of RICO conspiracy only, but sentenced to a term of imprisonment greater than twenty years.

The defendants were members of the Highwaymen Motorcycle Club (HMC) and were charged and convicted of numerous crimes, including substantive RICO, RICO conspiracy, and Violent Crimes in Aid of Racketeering, or VICAR. The HMC was a violent organization which engaged in violent predicate crimes, VICAR assaults, and the distribution of narcotics.

The court properly found that the evidence was sufficient to find that the HMC was a RICO enterprise and that there was proof of commission or agreement to a pattern of racketeering activity by each defendant. Two defendants, Clark and Moore, were influential members but were not convicted of committing any racketeering acts. Moore was known as the “godfather” of the HMC. Each defendant was acquitted of the substantive RICO charge (which named and included racketeering acts for which the maximum penalty included life imprisonment), but were convicted of the RICO conspiracy charge. Clark and Moore were each sentenced to a term of imprisonment exceeding the statutory maximum of twenty years.

Both Clark and Moore argued on appeal that his acquittal on count one (the substantive RICO charge) precluded a finding of guilty on count two (conspiracy to violate RICO). The court restated established RICO conspiracy principles to find the defendant must have “agreed to join a racketeering enterprise and [have] agreed to the commission of any two of the various predicate acts charged in the indictment.” The court also restated that the defendant, however, does not have to agree that he will commit the predicate acts only that someone will commit at least two predicate acts. Id. The court found that while Clark was acquitted of both of the racketeering acts with which he was charged, there was sufficient evidence to support the jury’s conclusion that he agreed that someone would commit at least two of the racketeering acts alleged in count one of the indictment. For example, while Clark was acquitted of Racketeering Act 9 (conspiracy to distribute cocaine), the court found there was ample evidence from which the jury could have concluded that Clark agreed that other HMC members would distribute cocaine. The court stated that the same can be said of Racketeering Act 11 (conspiracy to distribute controlled substances). While Clark was not charged with this act, the jury easily could have found that Clark agreed for other HMC members to commit the act.

Thus, the court found sufficient evidence in the record that Clark and Moore conspired to purchase and distribute cocaine despite the fact that they were acquitted of specific racketeering acts alleging drug conspiracy and distribution in the substantive RICO count.

However, the RICO conspiracy only conviction — apparently unsupported by a special verdict on any particular racketeering activity which may carry a term of imprisonment to include life — is limited to twenty years imprisonment. The court explained it is well established that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, __ U.S. ___, 133 S.Ct. 2151, 2158 (2013). The statutory maximum for a violation of the RICO statute is twenty years, unless the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment. 18 U.S.C. section 1963(a). The court stated that while Racketeering Acts 1, 2, 4, 6, 9, 11, and 13 are all violations for which the maximum penalty includes life, the jury never made any special findings as to Moore’s or Clark’s participation with these acts. Accordingly, Clark and Moore were each entitled to a limited remand for re-sentencing with respect to count two.