Opinion
No. CR 05-2051 JP.
April 14, 2006
ORDER DENYING MOTION TO STRIKE VARIOUS RICO PREDICATE ACT CHARGES
On March 15, 2006 Defendant Robert Vigil filed a Motion to Strike Various RICO Predicate Act Charges and Counts 1 2 of the Third Superseding Indictment (Doc. No. 113). The gravamen of Defendant's argument is that accessory crimes may not form the basis for a racketeering violation. The Court rejects this argument.
The motion challenges certain predicate acts alleged in the Third Superseding Indictment. In the Fourth Superseding Indictment, filed March 21, 2006, these predicate acts were expanded and renumbered. "Racketeering Act One" was expanded into Racketeering Acts One through Four, and the remaining Racketeering Acts were renumbered from Two through Twenty-Three in the Third Superseding Indictment to Four through Twenty-Six in the Fourth Superseding Indictment. This change does not affect the substance of the motion, and therefore the Court will treat the motion as applicable to the renumbered predicate acts alleged in the Fourth Superseding Indictment.
Count One of the Fourth Superseding Indictment alleges a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). Count Two charges a conspiracy under RICO, 18 U.S.C. § 1962(d), alleging that Defendant conspired with others to conduct a racketeering enterprise through a pattern of racketeering activity. The remaining 26 Counts of the Fourth Superseding Indictment charge Defendant with substantive violations that correspond to some of the Racketeering Acts in Count One: Counts Three through Six charge money laundering in violation of 18 U.S.C. § 1956; Counts Seven through Twenty-Eight charge Defendant with extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951.
Count One alleges that Defendant Vigil engaged in a pattern of racketeering activity through the commission of 26 "Racketeering Acts." All but two of the Racketeering Acts that form the predicates for the RICO violation allege Defendant participated as a principal and/or an accessory. The indictment references two federal criminal statutes in support of the money laundering Racketeering Acts (One through Four): 18 U.S.C. §§ 1956(a)(1)(B)( i) (money laundering) and 2 (aiding and abetting). 4th Sup. Indict. ¶ 26 at 10. The indictment also references two federal criminal statutes in support of the "Federal Extortion" Racketeering Acts (Five through Twenty-Three, and Twenty-Six): 18 U.S.C. §§ 1951 (extortion) and 2 (aiding and abetting). 4th Sup. Indict. ¶ 37 at 13-14. Similarly, the indictment references two state laws in support of the "State Bribery" Racketeering Acts (Five through Twenty-Three): N.M. Stat. Ann. § 30-24-2 (bribery) and § 30-1-13 (accessory). Id.
The Fourth Superseding Indictment mistakenly refers to 23 Racketeering Acts, which was the number of Racketeering Acts alleged in the Third Superseding Indictment, whereas the number is now 26. 4th Sup. Indict. ¶ 12 at 7.
Racketeering Acts Twenty-Four and Twenty-Five only allege Defendant participated as a principal. 4th Sup. Indict. ¶¶ 38-46 at 16-18.
The indictment alleges 19 separate transactions in Racketeering Acts in Five through Twenty-Three on each of 19 different dates between August 11, 2003 and March 15, 2005. Each separate transaction is listed as both a "Federal Extortion" and "State Bribery" offense involving the same amount of money. For example, Racketeering Acts 5A ("Federal Extortion") and 5B ("State Bribery") occurred on August 11, 2003 and involved $17,500. In other words, they are the same alleged act, designated as both federal extortion and state bribery.
The federal aiding and abetting statute provides: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, . . . [or] willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." 18 U.S.C. §§ 2(a) and (b). The state accessory statute provides: "A person may be charged with and convicted of the crime as an accessory if he procures, counsels, aids or abets in its commission and although he did not directly commit the crime . . ." N.M. Stat. Ann. § 30-1-13.
Defendant argues that accessory crimes under state law and aiding and abetting under federal law cannot be used as predicates for a RICO charge. Since both the federal extortion and aiding and abetting, and the state bribery and accessory statutory sections were presented to the grand jury, Defendant contends it is unclear to what extent the government relied on the federal aiding and abetting, or the state accessory portion of the charge to indict the Defendant. Thus, Defendant requests that the Court strike from the indictment Racketeering Acts Five through Twenty-Three. Alternatively, Defendant requests that the Court strike the reference in the indictment to the state accessory statute.
Analysis
Under RICO, it is unlawful for anyone associated with an enterprise affecting interstate commerce directly or indirectly to conduct or participate in the enterprise's affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(c); Sedima S.P.R.L v. Imrex Co., 473 U.S. 479, 496 (1985). A "pattern of racketeering activity" requires at least two acts of racketeering activity committed within a 10-year period which are (1) "related" to each other and (2) "amount to or pose a threat of continued criminal activity." 18 U.S.C. § 1961(5); H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). "Racketeering activity" includes acts of bribery under state law. 18 U.S.C. § 1961(1)(A). It also includes acts of extortion under 18 U.S.C. § 1951, and acts of money laundering under 18 U.S.C. § 1956. 18 U.S.C. § 1961(1)(B). Accessory and aiding and abetting crimes are not listed in RICO's definition of "racketeering activity," 18 U.S.C. §§ 1961(1)(A) or (B).
Notwithstanding that aiding and abetting is not so listed, the aiding and abetting statute, 18 U.S.C. § 2, merely provides another means through which a defendant may be found guilty of a substantive offense, and in doing so it abolishes the common law distinction between principal and accessory so that accessories are made principals. Thus, in United States v. Genova, 333 F.3d 750 (7th Cir. 2003), the court upheld a RICO conviction against a city attorney who participated in the mayor's mail fraud scheme, stating "whether as a principal or as an assistant under 18 U.S.C. § 2 does not matter." Id. at 759. See also United States v. Marino, 277 F.3d 11, 29 (1st Cir. 2002), cert. denied, 536 U.S. 948 (2002) (approving as correct statement of federal law jury instruction that "stated that the defendant could be found guilty of the substantive RICO violation, if the jury found that he `committed, or aided and abetted the commission of, at least two acts of racketeering'"); United States v. Concepcion, 983 F.2d 369, 382-84 (2d Cir. 1993) (conviction under RICO of violent crime in aid of racketeering could be premised on aiding and abetting in shootout).
The same principle applies to New Mexico accessory law. InState v. Flores, 138 N.M. 61, 116 P.3d 852, 2005-NMCA-092 (Ct.App. 2005), the defendant asserted that because the crime of being an accessory was not specifically described in the statutory definition of serious violent offenses, the definition contemplated only principals. The New Mexico Court of Appeals rejected the argument, stating that an accessory is "not convicted of a separate crime, but of the crime itself." Flores, 116 P.3d at 853. "Accessory liability is merely a different theory of liability, but is not a distinct offense." Id.
The only support Defendant cites for his argument that an accessory crime may not be used as a predicate act for a RICO offense is U.S. Department of Justice, Criminal Division, Organized Crime and Racketeering Section, RICO: A Manual for Federal Prosecutors (4th ed. 2000). The manual states: "`accessory after the fact' to the commission of the underlying offense is not `an act involving that offense.'" DOJ Manual at 14, available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/rico.pdf. However, there is a distinction between an accessory or an aider and abetter on the one hand, and an accessory after the fact on the other. "Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact." 18 U.S.C. § 3. An accessory after the fact is punished to a lesser degree than a principal. Id. Similarly, under common law and state laws, an accessory after the fact is "one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment."People v. Lucas, 402 Mich. 302, 304, 262 N.W.2d 662 (1978). Thus, a conviction for being an accessory after the fact constitutes a separate offense from the underlying offense. See, e.g., Brown v. Florida, 672 So.2d 861, 864 (Ct.App. 1996);Staten v. Florida, 519 So.2d 622 (Fla. 1988).
There is no defect in the indictment relating to the allegations of accessory or aiding and abetting that would require dismissal of any the alleged Racketeering Acts in Count One, or that would justify dismissal of either of the RICO counts. Additionally, there is no merit to Defendant's request to strike the aiding and abetting portions of the indictment.
THEREFORE Defendant's Motion to Strike Various RICO Predicate Act Charges and Counts 1 2 is DENIED.