In RICO Cases, Threshold Amount for Corrupt Activity Applies to Each Individual not to Criminal Enterprise
The corrupt-activity convictions of two men for participating in a Highland County drug ring have been overturned by the Ohio Supreme Court today because their drug sales did not meet the required statutory amounts.
The court ruled that the threshold monetary amount for “engaging in a pattern of corrupt activity” in the state’s racketeering and organized crime law must be applied to each individual in a criminal enterprise, not to the enterprise as a whole.
“[U]nless a person is involved in transactions on behalf of the enterprise in an amount equal to or greater than the statutory threshold, that person is not susceptible to being prosecuted under the Ohio RICO statutes,” Justice William M. O’Neill wrote in the lead opinion. “The person can still be prosecuted for the underlying drug charges, as the defendants were in this case, but the defendants’ first-degree felony convictions under Ohio’s RICO statutes must be overturned.”
At the time that Zachary Bondurant and Jeffrey Stevens were convicted, that amount was $500. The law has since been amended, and the threshold is now $1,000. The court’s decision today reverses the judgment of the Fourth District Court of Appeals.
From late 2010 to early 2011, the Highland County Sheriff's Office and the U.S. 23 Pipeline Major Crimes Task Force investigated drug activity in the county. The investigators identified a drug ring headed by Rodger Cassell that included Bondurant and Stevens.
Bondurant and Stevens were charged with engaging in a pattern of corrupt activity under Ohio’s version of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Both were also charged with several counts of trafficking in and possession of drugs. They pled not guilty and had a joint jury trial.
Drugs sales of $460 were attributed to Bondurant, and Stevens’s drug sales amounted to $250. The state, however, presented evidence at trial that the enterprise as a whole had sold more than $35,000 in drugs.
The jury found both men guilty of the drug charges and violating the state RICO law.
The men appealed separately to the Fourth District, challenging their convictions for engaging in a pattern of corrupt activity under Ohio’s RICO statutes. Each argued that he had not met the $500 threshold in the law. The appeals court, in an opinion combining the cases, upheld their convictions and sentences.
Bondurant and Stevens each appealed to the Ohio Supreme Court, which agreed to hear their cases. The court has issued one opinion, State v. Stevens, for both cases.
During the time that applies to this case, Justice O’Neill explained that R.C. 2923.31(I)(2)(c) defined “corrupt activity” as “engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in … conduct constituting” certain predicate offenses
when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars, or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars.
“The legislature’s continued use of the phrase ‘combination of violations’ in this statute is ambiguous as it could be read to apply to more than one violation for an individual, or it could be read to refer to the total violations of the entire enterprise,” Justice O’Neill wrote. “Within the context of this statute, it is susceptible to more than one reasonable interpretation.”
Once a criminal statute is determined to be ambiguous, it must be construed in favor of the defendant, Justice O’Neill noted. This principle is known as the rule of lenity.
In holding that the threshold amount in Ohio’s RICO laws should have been applied individually to Bondurant and Stevens rather than to the sales of the entire enterprise, Justice O’Neill wrote:
“It seems doubtful that the legislature intended to hold even small-time drug dealers liable for a first-degree felony through the operation of [Ohio’s RICO statutes]. … The RICO laws were enacted to punish the enterprise and those controlling the enterprise, not the petty criminals. To that end, it is reasonable to deduce that the intent underlying R.C. 2923.31(I)(2)(c) is to provide a threshold amount that must be exceeded by an individual before that person can be found to have engaged in ‘corrupt activity.’”
Joining Justice O’Neill’s lead opinion were Justices Paul E. Pfeifer and Judith Ann Lanzinger. Justice Judith L. French concurred only in the judgment of the court’s lead opinion. In an opinion joined by Justice Terrence O’Donnell, Justice Sharon L. Kennedy concurred in part with the court’s ruling and dissented in part. Chief Justice Maureen O’Connor dissented.
In her separate concurrence and dissent, Justice Kennedy wrote that she does not agree that the definition of “corrupt activity” in R.C. 2923.31(I)(2)(c) is ambiguous. The focus of the RICO laws is the enterprise, not the individuals involved in it, she reasoned.
“The proceeds that are attributable to these defendants in the enterprise comprise a portion of the proceeds of the combination of violations, not the total,” Justice Kennedy wrote. “Total proceeds were more than $35,000. Therefore, the statute does not require each defendant to have derived more than $500 in proceeds from the corrupt activity. It requires merely that the combined efforts of the criminal enterprise yielded more than $500 in proceeds.”
Justice Kennedy would reverse Stevens’s first-degree felony RICO conviction, however. R.C. 2923.32(B)(1) states that “engaging in a corrupt activity” is a second-degree felony, she explained. If one of the related “incidents of corrupt activity” is a felony of the first, second, or third degree, only then does the RICO violation elevate to a first-degree felony. While other participants in the drug ring were convicted of more serious second- and third-degree felonies, Stevens’s non-RICO crimes were all fifth-degree felony offenses. As a result, Justice Kennedy concluded that Stevens could not be convicted of a first-degree RICO violation. She concurred with the lead opinion to the extent that it determined that Stevens’s first-degree felony RICO conviction was not “sustainable.”
In a separate opinion concurring only with Justice O’Neill’s judgment, Justice French wrote that she does not find the definition of “corrupt activity” to be ambiguous, but she would still reverse the Fourth District’s decision in the case.
“[The definition of ‘corrupt activity’] requires proof that (1) the defendant participated in a ‘combination of violations’ listed in the division [of that statute] and (2) the ‘combination of violations’ satisfied the monetary threshold,” she wrote. However, she continued, the appellate court found that Stevens and Bondurant engaged in corrupt activity because police found more than $35,000 with Cassell, the ringleader.
“I see no interpretation of R.C. 2923.31(I)(2)(c) to support this result,” she concluded. “[T]he collective profit must still result from a combination of violations involving the defendant. The individual defendant’s ‘conduct’ must connect to the ‘combination of violations,’ and the ‘combination of violations’ must connect to the monetary threshold. … Here, the evidence established that Stevens and Bondurant each committed a combination of violations with Cassell and the enterprise, but it does not follow that the combination of violations each participated in generated more than $500 of the money found in Cassell’s possession. And, even if evidence linked the combination of violations of Stevens and Bondurant to amounts attributable to each in excess of $500, this would prove only a single incident of corrupt activity under R.C. 2923.31(I)(2)(c). A ‘pattern’ requires ‘two or more.’”
In her dissenting opinion, Chief Justice O’Connor noted first that Stevens and Bondurant were “professional purveyors” of heroin, crack cocaine, and powder cocaine in an enterprise that sold drugs near schools and in poor neighborhoods.
She also concluded that the statute defining “corrupt activity” is clear, and the RICO convictions should be upheld.
“It is nonsensical to think that a statute that was designed to be one of the most effective anti-crime laws in existence would use limiting terms, rather than expansive ones, in defining and proscribing criminal conduct,” Chief Justice O’Connor wrote.
“Criminal statutes should not be given an artificially narrow interpretation that would defeat the General Assembly’s apparent intent in enacting the statute,” she continued. “The lead opinion does just that.”
“The General Assembly’s repeated use of the word ‘combination’ clearly and unequivocally means a combination of violations, which in this case is the combination of the violations of Ohio’s drug laws committed by all those who were involved in the criminal enterprise,” the chief justice concluded.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
PDF files may be viewed, printed, and searched using the free Acrobat® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.