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RICO Convictions in Puerto Rico Call First Circuit to Analyze Sufficiency Requirements

Published By Stephen Preziosi

US v. Rodriguez-Torres
939 F.3d 16
First Circuit Court of Appeals
Decided: September 18, 2019

Issue:

What is required to convict under RICO and what evidence is considered sufficient to meet those requirements?

Holding:

The First Circuit held that there was sufficient evidence to show defendants met the requirements under RICO. A RICO conviction requires:

  1. That an “enterprise” existed and that the group had:
    • a common purpose,
    • relationships within the enterprise, and
    • longevity
  2. That the organization affected foreign or interstate commerce;
  3. That the defendants had some role operating and managing the organization;
  4. That there was a pattern of racketeering; and
  5. That the defendants knowingly joined the conspiracy.

Facts:

A gang known as La Rompe ONU was one of the biggest street gangs in Puerto Rico. After the take-down, an astounding 105 defendants were charged with racketeering, drug trafficking, firearms offenses, and murder. It was alleged that La Rompe profited by selling drugs to a large number of public housing projects by using violence and threats to maintain power over its territory. Four convicted defendants appealed to the First Circuit and argued, among other things, that there was insufficient evidence to convict them under RICO.

Analysis:

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted in 1970 to prosecute organized crime in the United States. 18 U.S.C. § 1962(c),(d) provides that anyone “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 

Enterprise Requirements Under RICO: Purpose, Relationships, and Longevity

Under RICO, an “enterprise” is defined as any group of individuals “associated-in-fact,” with the exception of legal entities. An association-in-fact is proved by evidence of an ongoing organization (formal or informal) and by evidence that its associates function as a continuing unit.

To determine whether an enterprise exists under RICO, the U.S. Supreme Court set out a three part test that asks whether the group has (1) a common purpose, (2) relationships among those associated with the enterprise, and (3) longevity sufficient to permit these associates to pursue the enterprise’s purpose. Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

The First Circuit held La Rompe met the “common purpose” requirement in determining whether the group made up an enterprise under RICO. According to the Court, there was sufficient evidence to show that La Rompe’s purpose was to profit by selling drugs at housing projects under their control by using violence. The group also shared the common purpose of expanding and strengthening its power.

In determining whether the group met the “relationships” requirement under RICO, the Court held there was more than sufficient evidence to show the group made up an enterprise. To start, the group’s naming their organization “La Rompe ONU”—where “ONU” stands for Organization of United Drug Traffickers, in English—showed they viewed themselves as a united group. Additional evidence cited by the Court pointed to the group’s loyalty to one another, pooling resources for the group’s common purpose, and joint criminal activity.

As for the longevity requirement, the Court held evidence showing La Rompe continued as a unit for eight years was more than enough to check off the final enterprise factor under RICO.

RICO Racketeering Affects Interstate or Foreign Commerce

Another element of RICO the government must prove is whether the organization affected interstate or foreign commerce. The codefendants argued the organization never operate outside of Puerto Rico. However, La Rompe’s trafficking of cocaine and heroin affected foreign commerce because, as the government’s expert witness testified, these narcotics are not produced in Puerto Rico and must have been imported. Additionally, the Court pointed to expert testimony that the large quantities of marijuana were likely imported from southwestern US states, thus also affecting interstate commerce.

Running the Enterprise: Level of Participation in RICO Activities

Not only must the government prove defendants participated in RICO activities, but it must also show defendants were involved to some degree with operating or managing the enterprise. The member of the enterprise need not be in a position of “upper management” to operate an enterprise. A group member can hold management status even under the direction of someone further up the chain. The Court found the La Rompe defendants held this status, at least to a sufficient degree, as evidence established they were drug-point owners.

Pattern of Racketeering

At least two predicate acts of racketeering within ten years of each other are required in showing a pattern of racketeering exists. These predicate acts include drug trafficking, bribery, money laundering, murder, robbery, extortion, and more. The government must also prove the acts are somehow related to one another and “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).

The La Rompe defendants argued that they should not have been prosecuted under RICO because evidence only established predicate acts of drug trafficking and no other acts. However, the Court held the defendants incorrectly interpreted the requirements of “pattern of racketeering” in that the “two or more” predicate acts do not have to be two distinct acts. On the contrary, a defendant may be prosecuted under RICO for multiple counts of mail fraud, for instance, without evidence of any other types of predicate acts. 

“Knowingly Joined” Requirement

The final RICO requirement disputed by the defendants is that they did not “knowingly join” the RICO conspiracy. This element only requires that a defendant “agreed with one or more coconspirators to participate in the conspiracy.” See United States v. Ramírez-Rivera, 800 F.3d 1, 18 n.11 (1st Cir. 2015). The Court held that the defendants’ participation as drug-point owners was enough to show they knowingly entered into the conspiracy since making money through drug dealing was the main purpose of La Rompe’s conspiracy.

RICO Racketeering Conspiracy: How Specific Must a Jury’s Verdict be? No Need To Name Racketeering Acts Says The First Circuit.

Published By Stephen Preziosi

United States v. Leoner-Aguirre
No. 18-1333
First Circuit Court of Appeals
Decided: September 20, 2019

ISSUE

Withdrawing From a Racketeering Conspiracy: Incarceration Doesn’t Count

  • Whether the incarceration of a defendant constitutes a withdrawal from a RICO conspiracy.

HOLDING

  • The Court held that the jury is not required to state in its verdict which specific racketeering acts the defendant committed. The Court relied on Salinas v. United States, 522 U.S. 52 (1997), which overruled United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). Thus, while there was a long list of alleged acts that Mr. Aguirre was accused of such as murder, attempted murder, robbery etc. It was not necessary for the jury to specify which acts they found the defendant to have committed. 
  • The Court held that imprisonment has no bearing on whether a defendant has withdrawn from a racketeering conspiracy nor does ceasing to participate in a conspiracy mean a defendant has withdrawn. To withdraw from a RICO conspiracy, a conspirator must act affirmatively. Typical demonstrations of withdrawal include a “full confession or communication of abandonment to one’s co-conspirators.”

What is Required in a Jury’s Verdict to Convict a Defendant of RICO or Racketeering Conspiracy?

FACTS

Rafael Leoner-Aguirre was a member of the El Salvador based gang “MS-13,” which also operates in the United States. In 2017, a grand jury indicted Aguirre for a conspiracy under the RICO Act (Racketeer Influenced and Corrupt Organizations). Allegations against Aguirre under the RICO conspiracy included attempted murder, robbery, and drug trafficking. A jury found Aguirre guilty of RICO conspiracy and he was sentenced to 228 months in prison with three years of supervised release.

Before his trial, Aguirre urged the district court to instruct the jury to specify which acts it found Aguirre had committed in order to convict him of RICO conspiracy. The district court denied his motion, and Aguirre appealed to the First Circuit.

ANALYSIS

No Findings of Specific Acts of RICO Conspiracy from the Jury are Necessary in a Jury’s Verdict

Aguirre’s argument that the jury must specify which racketeering acts Aguirre committed to convict him of RICO conspiracy relies on the First Circuit’s ruling in United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). However, the Court found that the Supreme Court’s decision in Salinas v. United States, 522 U.S. 52 (1997) contradicts the case on which the Ramirez-Rivera decision relies. Aguirre’s argument, therefore, fails since the Supreme Court’s decision overrules the underlying case in Ramirez-Rivera.

Incarceration Does Not Constitute Withdrawal from a RICO Conspiracy

As to the withdrawal issue, the First Circuit held that a defendant convicted of RICO conspiracy does not withdraw from a conspiracy just because he has entered prison. On the contrary, the Court found there was sufficient evidence to determine that Aguirre continued to actively participate in the conspiracy while incarcerated. As the Court pointed out, “ . . . mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal.” Instead, the defendant must demonstrate he has affirmatively withdrawn from the RICO conspiracy. Although the Court provided no specific rule, it held that affirmative withdrawal from a conspiracy typically “requires either a full confession to authorities or a communication by the accused to his co-conspirators that he has abandoned the enterprise and its goals . . .”

Protecting the Right to Preserve an Appeal Regardless of Plea Agreement Language

Published By Stephen Preziosi

Garza v. Idaho
No. 17-1026
U.S. Supreme Court
Decided: February 27, 2019

ISSUE

Whether counsel is deemed ineffective where a defendant requests that counsel file a Notice of Appeal and, even in light of a signed  waiver of appeal, defense counsel fails to file the notice of appeal. 

HOLDING

The U.S. Supreme Court held that counsel is ineffective where counsel declines to file a Notice of Appeal at the defendant’s request even where the defendant has signed a waiver of appeal. 

FACTS OF THE CASE

Garza signed a waiver of appeal upon pleading guilty to criminal charges in the state of Idaho. Following Garza’s sentencing, he informed counsel that he wished to pursue an appeal. Counsel advised Garza not to appeal because he had signed a waiver of appeal. After the time to file a notice of appeal expired, Garza sought post-conviction relief on ineffective assistance of counsel grounds. The trial court denied relief and the Idaho Court of Appeals affirmed the state court’s decision. Thereafter the Idaho Supreme Court affirmed, holding that counsel could not be deemed deficient nor did counsel’s performance prejudice Garza. The Court also held that where a defendant has signed a waiver of appeal, the presumption of prejudice, under Roe v. Flores-Ortega, 528 U.S. 470, does not apply. 

COURT’S ANALYSIS

Strickland v. Washington, 466 U.S. 668 set forth a two-prong test a defendant must meet to demonstrate ineffective assistance of counsel: (1) counsel’s performance must be ineffective, and (2) counsel’s deficient performance must have prejudiced the defendant so much as to have deprived him of a right to a fair trial. However, when counsel’s performance is so ineffective that it “deprives a defendant of an appeal that he otherwise would have taken,” prejudice is presumed. Flores-Ortega, 528 U.S., at 484.

Commonly included in a defendant’s plea agreement is a waiver of appeal. At face, a defendant has signed away his right to pursue an appeal. However, the Supreme Court recognizes that the waiver does not prevent the defendant from pursuing appellate claims outside the scope of the plea agreement.

As noted in Flores-Ortega, effort on the part of counsel required to file a Notice of Appeal is “purely ministerial” and “imposes no great burden.” 528 U.S., at 474. Whether an appeal is worth pursuing is not up to counsel; the defendant has the “ultimate authority.” Jones v. Barnes, 463 U.S. 745, 751.

Here, Garza’s attorney clearly disregarded his persistent requests to file a notice of appeal when it was not up to counsel to decide. Because Flores-Ortega has determined that a presumption of prejudice applies when a defendant is “denied counsel at a critical stage,” the Court held that a presumption of prejudice also applies when counsel’s ineffectiveness has deprived the defendant of an “appellate proceeding altogether.” 528 U.S., at 483. Therefore Garza’s attorney deprived him from a critical proceeding to which Garza had the right. 

Contrary to the Government’s argument, Garza need not demonstrate that his claims would have won on appeal. The defendant’s right to this procedure overrides any conditions proposed by the Government and, in any case, it would be improper to require a defendant to determine which arguments he would have made on appeal.
The U.S. Supreme Court reversed and remanded the Idaho Supreme Court’s decision.

Sentence Reduction and Rule 35(b) Motions and the 3553(a) Factors

Published By Stephen Preziosi

USA v. KATSMAN

16-2583-cr

United States Court of Appeals for the Second Circuit

Decided on October 10, 2018

 

ISSUE

ONE Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. TWO Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

 

HOLDING

ONE The Court held that the district court is allowed to deny the government’s motion pursuant to Rule 35(b) because such motions are to be decided in two steps: first it determines whether the defendant in fact provided substantial assistance; where the defendant pleaded guilty in SDNY with charges solely based on information voluntarily provided during proffer sessions. Second, if so, it must then determine what, if any, reduction in sentence is warranted; where no reduction in sentencing. TWO The Court held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence because it directly effects step two in deciding whether to reduce the defendant’s sentence in light of his cooperation.

 

FACTS OF THE CASE

On November 17, 2010, Igor Katsman pled guilty in the EDNY to charges relating to a fraudulent check-cashing scheme and was sentenced to 84 months’ imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. Consequently, his motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

 

In 2013, the FBI and USAO-SDNY approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman, and the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY because he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the plea deal.

 

The following year, the USAO-EDNY filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision and a summary of its reasoning, which is sealed.

 

COURT’S ANALYSIS

In this case, the courts find that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if it does, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court “conflated these discrete steps into one.” They determined that the district court fulfilled the requirements of the first step by inferring that “Katsman clearly provided substantial assistance” when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a “120-month sentencing, the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a)” D.Ct. Dkt. No. 103 because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served.

 

While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.” Additionally, Section 3553(a) requires that courts “impose a sentence sufficient, but not greater than necessary,” and that they consider the “statutory factors in determining the particular sentence to be imposed.”

 

If the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness which may result in a greater reduction. As opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it which may result in a smaller reduction. Thus, the Circuit Court found that on a Rule 35(b) motion, the trial court may apply the 3553(a) factors at sentencing.