Thursday, July 01, 2021

RICO Conspiracy Not Crime of Violence; Variance on VICAR Count Required Reversal

US v. SimmonsSimmons and his codefendants were charged in a 38-count indictment that included (as relevant for discussion here) counts for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), committing violations of the Violent Crimes in Aid of Racketeering statute (VICAR), and possession/use of a firearm in connection with a crime of violence – specifically, conspiracy to violate RICO. After being convicted at trial, the district court granted the defendants’ motion to vacate one of the firearm counts, holding that RICO conspiracy was not a “crime of violence” as defined under 18 USC 924(c). Two of the defendants received multiple life sentences, while one received a sentence of 35 years in prison.

The Government appealed the decision on the RICO conspiracy, while the defendants cross appealed on numerous issues. Ultimately, the Fourth Circuit affirmed the vacation of the firearm charge related to the RICO conspiracy, while also holding that several other convictions needed to be vacated as well. On the RICO conspiracy issue, the court noted that the Government’s argument was limited to RICO conspiracy charged “with aggravating factors.” Nevertheless, the court held that those factors were not additional elements of the RICO conspiracy offense and therefore did not transform it into a crime of violence.

As to the defendants’ arguments, the court agreed that the VICAR counts based on assault had been constructively amended by the district court’s jury instructions. Those instructions correctly instructed the jury on a state offense different from the one charged in the indictment. The jury’s general verdict made it impossible to tell if the defendants were convicted on that basis or the other, correctly identified and instructed, offense. The constructive amendment was plain error that required the court to notice and rectify it. Finally, the court held that one of the VICAR murder counts was based on insufficient evidence.

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