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Justices weigh whether state RICO-inspired statute applies to street crimes

November 18, 2015
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Madison County Prosecutor Rodney Cummings, a one-time Golden Gloves amateur boxing champ, has added the punch of charging racketeering in some street-level crimes, including one argued Nov. 5 before the Indiana Supreme Court. (IL Photo/Eric Learned)

Ashonta Kenya Jackson was the wheelman, driving a getaway car while younger men robbed an Anderson liquor store twice in a month and held up a bank. Is he a racketeer?

Madison County Prosecutor Rodney Cummings thinks so. He said Jackson recruited participants and coordinated the robberies, after which he took his cut of the loot. So in addition to charging him with multiple robberies, Cummings tacked on a corrupt business influence charge, and a jury found Jackson guilty.

“We use it when it applies,” Cummings said of Indiana’s racketeering statute. “It’s an extra weapon we have in our arsenal, and if it’s available, we implement it.”

A divided Court of Appeals panel thought differently, though, tossing Jackson’s corrupt business influence conviction while letting his burglary convictions stand.

“I think comparing this to a mafia family is a bit of a stretch,” defense attorney David W. Stone IV said to Indiana Supreme Court justices during oral arguments in Jackson’s appeal on Nov. 5. The court granted transfer to consider the racketeering question.

Justices appeared receptive to such arguments, but several also focused on the plain language of Indiana’s statute. Based on the federal Racketeer Influenced and Corrupt Organizations Act, Indiana’s Level 5 felony corrupt business influence statute omits a requirement of the federal code that crimes be of a continuing nature. Indiana’s statute requires patterns of crimes to support conviction.

Seeing no ambiguity in a plain reading of I.C. 35-45-6-2(2), Chief Justice Loretta Rush rebuffed Stone’s argument – and the prevailing ruling of the Court of Appeals – that elements of the federal RICO Act requiring continuity must be read into state law.

“Indiana hasn’t adopted its federal counterpart in numerous occasions,” Rush said. Reading the plain language of the state statute, she told Stone, “We can’t get to where you want us to go.”

Stone replied the statute’s plain-language requirement for a pattern of racketeering activity also fails in Jackson’s case. “Three crimes within 30 days doesn’t show a pattern of anything,” Stone said. “They’re trying to parlay a garden-variety robbery of a liquor store into a racketeering influence. … It’s almost an insult to real racketeering activities.”

But deputy attorney general Angela Sanchez said justices should affirm the jury on the racketeering count, pointing to evidence she said would support Jackson’s racketeering conviction under either the state pattern or federal continuity conditions. Nevertheless, she said the Legislature chose to base its racketeering definition on characteristics of predicate crimes as they related to each other with no condition that the crimes be of a continuing nature.

“Lack of continuity by itself does not defeat a conviction,” she said, arguing that in Jackson’s case a pattern could be demonstrated by the organization, planning and execution of the crimes.

“What is striking here is the defendant’s role as sort of a mastermind creating a blueprint that allows him to get impressionable young people to take all the risk in committing the robberies, and he stays a safe distance away and maximizes his reward,” Sanchez said.

“Kind of like a boss that the RICO statute is intended to target,” Justice Mark Massa observed.

Sanchez responded to questioning by Justice Steven David with an argument that even if the state found continuity a requirement of the racketeering statute, Jackson’s conviction should stand. She noted the escalating nature of the crimes: the defendants hit a bank after a couple of liquor-store holdups; the crimes became more complex; and Jackson’s involvement only became known after his accomplices were arrested and turned him in.

Justices also showed concern, though, that the statute could be extended to low-level street crimes, turning the racketeering law into simply another enhancement statute.

“This is a classic example of piling on,” Stone argued. Jackson “was convicted of his role in the robbery, he was a habitual (offender), and for some reason they didn’t charge him with conspiracy. … He’s already doing 50 years; eight more for this is almost overkill.”

In 2014, prosecutors filed only 34 counts under the corrupt business influence statute subsection applied to Jackson, according to statistics from the Indiana Prosecuting Attorneys Council. Data from reporting counties in 2014 show fewer than 200 charges were filed under all sections of the state racketeering code. (IPAC’s stats do not include Allen, Elkhart, Floyd, and LaGrange counties, and figures reported from Lake, Marion and St. Joseph counties are partial-year totals.)

Cummings has brought racketeering counts in a variety of cases, from Jackson’s robbery case to the prosecution of Anderson attorney Stephen Schuyler, who’s accused of stealing hundreds of thousands of dollars from estates he represented. Cummings also has filed racketeering charges in major heroin busts with multiple defendants and involving large sums of money, and in other drug cases.

“If we have a group of individuals engaging in a pattern of criminal behavior, we look at applying the corrupt business influence statute,” he said. Cummings said he asked the attorney general to seek transfer because the Court of Appeals applied a continuity element that isn’t contained in the statute.

But during oral arguments in Jackson’s appeal, Stone said he saw another motive. “The fact that the state wanted to have transfer granted in this case indicates they want to be able to do this type of thing to enhance low-level street crime into a RICO act.”

Stone said applying the racketeering statute in Jackson’s case produces an absurd result. “It’s our position that applying the racketeering (statute) to three petty armed robberies that took place in a month could not have been the contemplation of the Legislature,” he said.

Sanchez said the continuity condition found by the Court of Appeals majority in vacating Jackson’s conviction had been grafted onto Indiana’s statute by the court, but Justice Robert Rucker pressed her regarding precedent finding a continuity component in Indiana’s racketeering law dating to 1990.

“During that period of time there has been no action by the Legislature to show it disagreed with that,” Rucker said. “Why couldn’t we say the Court of Appeals got it right in 1990, and they got it right now?”

Sanchez said legislative acquiescence can’t be assumed in this case. She noted that since the cases Rucker cited, at least three corrupt business influence convictions have been affirmed on sufficiency of evidence claims without mentioning a continuity requirement. Those cases found evidence to support a pattern as the state law requires, but Sanchez conceded the continuity issue didn’t appear to be argued in the cases she cited. She also pointed out the continuity element has never been added to pattern jury instructions for corrupt business influence.

Massa asked whether apparent legislative acquiescence on the continuity issues was in keeping with a broader understanding of what racketeering is – “not just a couple of related random street crimes.”

“In this case, there’s simply no basis for there to be a judicial revision of our statute, because our statute is plain and clear,” Sanchez said.•

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