Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Last updated 5/18/2015
Ohio Statutes
R.C. 1315.55 -- Money laundering.
R.C. 2923.31 -- Definitions.
R.C. 2923.32 -- Engaging in pattern of corrupt activity; forfeiture.
R.C. 2923.33 -- Motion and order to preserve reachability of property subject to forfeit.
R.C. 2923.34 -- Civil proceedings for relief from violation; civil penalty.
R.C. 2923.35 -- Disposition of forfeited property, fine or civil penalty.
R.C. 2923.36 -- Filing of corrupt activity notice lien notice; lis pendens.
Federal Statutes
18 U.S.C. 1961 -- Definitions.
18 U.S.C. 1962 -- Prohibited racketeering activities.
18 U.S.C. 1963 -- Criminal penalties.
18 U.S.C. 1964 -- Civil remedies.
18 U.S.C. 1965 -- Venue and process.
18 U.S.C. 1966 -- Expedition of actions.
18 U.S.C. 1967 -- Evidence.
18 U.S.C. 1968 -- Civil investigative demand.
State v. Willan, ___ Ohio St.3d. ___, 2015-Ohio-1475, ___ N.E.3d. ___--- Imposition of mandatory ten-year sentence under RICO did not violate defendant's Sixth Amendment right to imposition of a sentence based on facts found by a jury.
Hemi Group, LLC v. City of New York, N.Y. (2010), 130 S.Ct. 983 – Issue is how long the chain of causation may be in a RICO suit. New York City sued a New Mexico company that sold cigarettes to city residents, but failed to report such sales to the State of New York as required by the Jenkins Act. The Jenkins Act requires customer lists be sent to states. A city may then acquire lists through cooperation of the state government. City law obliges purchasers to pay the tax, and the lists would facilitate going after purchasers, but the city’s loss of revenue ultimately is due to residents’ failure to pay tax. The disconnect between the alleged fraud and the asserted injury is too great for RICO to be available in these circumstances.
State v. Smith (2000), 139 Ohio App. 3d 398, 403 -- The RICO statute imposes strict liability, apart form whatever culpable mental state must be proven for predicate offenses. A statute may provide strict liability consistent with due process if it is a regulatory measure in the interest of public safety.
State v. Dute, Hamilton App. No. C-020709, 2003-Ohio-2774, ¶ 36-38 -- Defendant sold porno tapes involving herself and others over the Internet. For purposes of sentencing the court improperly found this to be organized criminal activity based on the number or participants.
State v. Schlosser (1997), 79 Ohio St. 3d 329 -- (1) Syllabus: "Ohio's Racketeer and Corrupt Organization statute, R.C. 2923.32(A)(1), plainly indicates a purpose to impose strict liability." The culpable mental state of the predicate offenses still must be proven. (2) At p. 334: Three robberies by the same person are not a RICO violation, since the statute is directed at enterprises. Compare discussion at State v. Wilson (1996), 113 Ohio App. 3d 737, 742 involving multiple charges arising from a check cashing scheme.
State v. Haddix (1994), 93 Ohio App. 3d 470 -- (1) At 475-477: The culpable mental state applicable to engaging in a pattern of corrupt activity is strict liability. Court reverses it previous holding in State v. Haddix (1994), 92 Ohio App. 3d 221 that the mens rea requirement is the same as that of the individual predicate offenses. Also see State v. Rice (1995), 103 Ohio App. 3d 388, 403-404. (2) At 479: Venue lies in county where conspiracy to steal was hatched, even though theft took place in a different county.
State v. Burkitt (1993), 89 Ohio App. 3d 214 -- (1) At p. 221: "...(A) collection of drug sales alone will not make a 'pattern' under the corrupt activity statute: it will only tend to show a pattern...(T)he element of 'pattern' in the corrupt activity statute is more complex than mere repeated engagement in the 'corrupt activities' defined in R.C. 2923.31(I). These activities must additionally be 'related to the affairs of the same enterprise, [and] not isolated or so closely related to each other and connected in time and place as to constitute a single event." (2) At p. 223: "A violation of the corrupt activity statute can only be defined in time by reference to the predicate acts that tend to establish its pattern. It follows that a 'pattern' cannot predate the earliest proven predicate act as a matter of law."
H.J. Inc. v. Northwestern Bell Telephone Co. (1989), 492 U.S. 229 -- "(T)o prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity."
State v. Thrower (1989), 62 Ohio App. 3d 359 -- (1) R.C. 2923.32 is not a retroactive or ex post facto law merely because one of the predicate acts may predate the effective date of the statute. Nor does it allow forfeiture of estate, contrary to Article VIII, Sec. 12 of the Ohio Constitution or Clause 2, Sec. III, Art. III of the U.S. Constitution. Nor is the statute unconstitutionally vague. (2) Predicate drug offenses do not merge with offense of engaging in a pattern of corrupt activity. (3) Defendant has a right to be present at that portion of sentencing relating to forfeiture.
State v. Giffin (1991), 62 Ohio App. 3d 392 -- (1) Where some elements of the offense of engaging in a pattern of corrupt activity occurred in Franklin County, venue also lay in Franklin County for trial of predicate offenses committed elsewhere. (2) R.C. 177.03(D)(2)(a) does not allow an organized crime task force to fix venue in a jurisdiction not otherwise proper under R.C. 2901.12.
State v. Brown (May 1, 1991), Lorain County App No. 90CA004836, unreported -- Ohio courts have subject matter jurisdiction in RICO prosecution predicated on drug trafficking where Miami police officer knew drugs were destined for Ohio, even though he was never physically present in Ohio.
State v. Hill (December 31, 1990), Stark County App No. CA-8094, unreported - "Enterprise" as used in the RICO statute includes any individual or sole proprietorship. Also see United States v. Joseph (E.D. Pa. 1981), 526 F. Supp. 504.
For a readable discussion of a multitude of issues common to racketeering prosecutions see United States v. Angiulo (1st Cir. 1990), 897 F. 2d 1169.
State v. Siferd, 151 Ohio App. 3d 103, 2002-Ohio-6801 -- (1) An indictment must identify predicate offenses, whether indicted or unindicted. (2) State is not required to prove participation in the management of the criminal enterprise. However, the defendant must be shown to have participated in the affairs of the enterprise, and not merely to have committed multiple offenses.
State v. Morgan (1994), 71 Ohio St. 3d 178 -- Syllabus: "The determination whether a federal offense or an offense committed in a sister state constitutes a felony for purposes of R.C. 2923.32 depends upon whether the act committed by the defendant would constitute a felony offense if committed in Ohio. The classification of the offense imposed upon the defendant by the foreign jurisdiction has no bearing on the question. (R.C. 2923.31[E], construed.)" Prosecutor had claimed predicate acts would have been a felony under federal law.
State v. Rice (1995), 103 Ohio App. 3d 388, 402 -- Multiple schemes to extract money from disability and pension fund (not amounting to theft in office because the defendant was an outside contractor) were in the nature of embezzlement and merged into a single theft offense, however, second predicate offense could be found among further theft in office and illegal interest in a public contract charges where she was charged with aiding and abetting a public official.
State v. Rich (1993), 87 Ohio App. 3d 194 -- Predicate offenses alleged in a RICO indictment were misdemeanor gambling violations under Ohio law, but the prosecution claimed they could be used as the basis for a racketeering prosecution as the same acts would have constituted felonies under federal law. Indictment was properly dismissed as the violation must be a felony under Ohio law, looking to the substance of the offense and not merely the penalty applicable under federal law.
State v. Beverly, ___ Ohio St.3d ___, 2015-Ohio-219, ___ N.E.3d ___-- Existence of enterprise may be established without proving that enterprise is structure separate and distinct from pattern of corrupt activity.
State v. Fritz, 178 Ohio App. 3d 65, 2008-Ohio-4389 – On the question whether there must be proof of an ascertainable structure to a criminal enterprise beyond the structure needed to engage in a pattern of corrupt activity, the court finds it enough that the defendant and another functioned as a unit in completing a drug transaction on two occasions.
State v. Silverman, Franklin App. Nos. 05AP-837, 838, 839, 2006-Ohio-3826, ¶ 114-120 -- For purposes of R.C. 2923.32(A)(1), which reaches acts by a person employed by or associated with an enterprise, an attorney and the L.P.A. he practices through are sufficiently distinguishable legal entitities. Also see Cedric Kushner Promotions, Ltd. v. King (2001), 533 U.S. 158.
State v. Agner (1999), 135 Ohio App. 3d 286 -- Sale of cocaine on two separate occasions by itself was not proof that the defendant was associated with a larger drug enterprise.
State v. Adkins (2000), 136 Ohio App. 3d 765 -- Though there would have been sufficient proof to support a racketeering conviction had the jury been properly instructed on the elements of the predicate offenses, the instructions as given did not properly place before the jury the elements of the third degree felony violations necessary for a racketeering conviction.
State v. Chamblin, Adams App. No. 02CA753, 2004-Ohio-2252 -- Failure to instruct on the element of weight, elevating possession of marijuana to a felony, means conviction was for a minor misdemeanor. This in turn leads to reversal of racketeering count. Defendant did not have to object to omission.
State v. Grimm (1995), 102 Ohio App. 3d 359 -- RICO convictions upheld where husband and wife stole bronze cemetery ornaments, and sold them for scrap, on at least ten separate occasions, spread over nine locations, six counties and two states. Even though "the statute may have been enacted to address activities more readily identified with 'organized crime,' our review must focus on whether the elements of the statute have been satisfied by the evidence presented."
State v. Feliciano (1996), 115 Ohio App. 3d 646, 652-656 -- Court rambles through aspects of a gambling operation looking for evidence supporting a racketeering conviction, eventually concluding bettors were on occasion extended credit, thus establishing collection of an unlawful debt. It also managed to uphold a firearm specification appended to the racketeering count.
State v. Wolfe (1988), 51 Ohio App. 3d 215 -- State failed to prove conduct fitting the definition of 'corrupt activity" set forth in R.C. 2923.31(I).
State v. Johnson, Franklin App. No. 07-AP-538, 2008-Ohio-590, ¶38 -- Testimony concerning an earlier argument with the victim and the defendant‘s declaration at the time of the shooting were sufficient to establish the killing was gang related, but there was no evidence establishing that the gang constituted a "criminal gang" within the definition of R.C. 2923.41.
State v. Williams, 148 Ohio App. 3d 473, 2002-Ohio-3777 -- R.C. 2923.42, proscribing participation in a criminal gang, survives void for vagueness and overbreadth attacks. Also see State v. Rushton, 151 Ohio App. 3d 654, 2003-Ohio-692; State v. Woodbridge, 153 Ohio App. 3d 121, 2003-Ohio-2931.
State v. Stallings, 150 Ohio App. 3d 5, 2002-Ohio-5942 -- (1) ¶11-18: R.C. 2923.42 is not rendered unconstitutionally vague by use of the terms "actively participate" and "purposely promote, further, or assist any criminal conduct." (2) ¶19-22: The statute does not violate freedom of association. It does not proscribe membership in an organization, unless accompanied by participation in criminal activity. Nor does the statute inflict cruel and unusual harm.
State v. Bennett, 150 Ohio App. 3d 450, 2002-Ohio-6651 -- R.C. 2923.42 is not unconstitutionally vague, or violate due process by imputing guilt through association. Nor is it unconstitutionally overbroad in violation of the First Amendment. See dissent finding the statute unreadable gibberish.
Cuellar v. United States (2008), 128 S.Ct. 1994 – Defendant was prosecuted under a federal statute for attempting to transport a large amount of cash across the Mexican border knowing that the transportation was designed to "conceal or disguise the nature, the location, the source, or the ownership, or the control" of the money." Conviction reversed because the proof focused on the manner of concealment rather than the defendant‘s intent.
United States v. Santos (1008), 128 S.Ct. 2020 – Where a federal money laundering statute uses the term "proceeds" that term is to be given its common meaning – profits – rather than receipts.
State v. Nasrallah (2000), 139 Ohio App. 3d 722, 727-728 -- (1) Greater than minimum sentence for first offender near the center of an international credit card fraud syndicate was not arbitrary, unconscionable or unreasonable (2) "Inconclusive" polygraph results as to some questions warranted court's refusal to enforce plea agreement of minimum sentence in return for cooperation in investigation. (3) $5,100,000 fine related to entire racketeering enterprise, as opposed to Ohio portion of activity, was permissible.
Scheidler v. National Organization for Women (2003), 123 S.Ct. 1057 -- R.I.C.O. class action against abortion protesters fails as the predicate acts were not established. Protestors did not commit extortion as they did not seek to obtain property.
State v. Wilson (1996), 113 Ohio App. 3d 737, 748 -- Convictions for engaging in a pattern of corrupt activity and conspiring to do so did not amount to double jeopardy. Also see State v. Conley (July 15, 1991), Preble County No. CA90-11-023, unreported; State v. Brown (May 1, 1991), Lorain County No. 90CA004836, unreported; State v. Hill (December 31, 1990), Stark County No. CA-8094, unreported.
State v. Duncan (1998), 130 Ohio App. 3d 77 -- R.C. 1315.55, the money laundering statute, is not unconstitutionally vague.
Heights Community Congress v. Smythe, Cramer Co. (N.D. Ohio 1994), 862 F.Supp. 204, 207 -- A threat to sue does not constitute extortion within the meaning of R.C. 2905.11(A). Nor does a demand for a settlement without a full disclosure of the evidence supporting the claim. Defendant in a civil suit claimed multiple attempts to secure settlement in lieu of litigation to constitute engaging in a pattern of corrupt activity.
Daniels v. True (1988), 47 Ohio Misc. 2d 8 -- Consumer may not use Ohio RICO Act to seek damages for transgressions which may be remedied under the Consumer Sales Practices Act. (Probably an erroneous conclusion.)
Guice v. Qua-Guice Pontiac, Inc. (1988), 42 Ohio Misc. 2d 9 -- As with anti-trust actions, but unlike many other causes of action arising under federal statutes, the federal courts have exclusive jurisdiction in civil suits brought under 18 U.S.C. 1962. See 18 U.S.C. 1964(c).

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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