Takeaways from United States v. Green
The Racketeer Influenced and Corrupt Organizations (RICO) law prohibits organized crime, specifically, conducting or participating in the conduct of racketeering activity or the collection of unlawful debt affecting interstate or foreign commerce. Elements of the RICO conspiracy offense include agreeing or conspiring with one or more person(s) to engage in a RICO offense, even if a crime was never actually committed.
To convict a defendant of RICO conspiracy, the prosecution must find beyond a reasonable doubt the following:
- That two or more persons agreed to conduct or to participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity
- That the defendant was a party to or member of that agreement
- That the defendant joined the agreement or conspiracy with another conspirator, knowing its objective to conduct an enterprise’s affairs through a pattern of racketeering activity
The term “crime of violence” means an offense that is a felony and:
- Has as an element the use, attempted use, or threatened use of physical force against the person or property of another
- By its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Now that we’ve covered the laws, let’s look at the case.
Three brothers and some of their family and friends operated a drug-trafficking organization in Florida. Members used are carried guns, tampered with witnesses, and kidnapped, beat and murdered people. Some members sold strictly prohibited drugs such as crack cocaine, powder cocaine, marijuana, heroin and other drugs.
As a result of these crimes, the defendants were convicted of multiple federal firearm offenses that included relation to the RICO conspiracy, based on a finding that the RICO conspiracy was a “crime of violence under § 924.
The defendants appealed, arguing that the crime of violence finding was false. The appellate court explained that a crime of violence is a felonious offense that involves at least one of the following two elements:
- The use, attempted use or threatened use of physical force against the person or property of another
- By its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense [the residual clause]
The residual clause of 18 U.S.C. 924(c)(3)(B) involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. However, since the US Supreme Court (USSC) recently ruled the residual clause as unconstitutionally vague, the only way it could determine whether a RICO conspiracy qualified as a crime of violence was by examining the elements clause.
The court applied the categorical approach to understand “whether the statutory elements of the predicate offense necessarily require, at minimum, the threatened or attempted use of force.” Since the elements of a RICO conspiracy focus on the agreement to commit a crime, and not the threat or attempt to use force, the court rules that RICO conspiracy does not qualify as a crime of violence under 18 U.S.C. 924(c)(3).
This ruling comes as a surprise to many, and our Galveston criminal defense attorneys at Zendeh Del & Associates, PLLC are ready to answer your questions regarding your RICO conspiracy charges. To contact us, call (409) 204-5566 to schedule a free case review!