Companion RICO Cases Address Jury Instruction Issues
US v. Knight, 2011 WL 5148802 (10th Cir. Nov. 1, 2011) (published): Applying plain error standard, Tenth Circuit rejects challenge to jury instructions in racketeering case involving a conspiracy to sell illegal drugs by Crips members. The district court had relied on H.J. Inc. v. Northwestern Bell Telephone Co., 492 US 229 250 (1989), in defining the "relatedness" element of racketeering. The Tenth finds no plain error because no there is no single test for determining whether predicate RICO acts are related and where the law is unsettled, the decision to instruct one way or another is not plain. Nonetheless, "the more prudent course for district courts is to continue to adhere" to the pattern instructions. The COA also rejected the argument that the district court committed plain error by not submitting an instruction on constructive possession, where the defendant had not requested such an instruction.
US v. Randall, 2011 WL 5148862 (10th Cir. 2011) (published): a companion case to US v. Knight. Mr. Randall was charged with one count of conspiracy to commit a RICO violation, based on drug activity by Crips members. He sought to have the district court present an instruction on withdrawal from the conspiracy. Such an instruction was not warranted based on evidence that Mr. Randall had once told a prison official that he was no longer part of a gang. The "vague statement" -- which did not even include information about which gang or what illegal activity might be involved -- did not "rise to the level required for withdrawing from a conspiracy." "Insofar as we can infer, this barebones statement is nothing more than the run of the mill statement that prisoners often make to prison officials to convince them that they no longer present a threat to society and so should get a break. That is not enough." Alternatively, Mr. Randall might have told other gang members he had withdrawn, but there was no evidence that he had done so. As a cautionary note, the Court observed in a footnote that it could have denied this issue based solely on the grounds that Mr. Randall did not include the jury instruction he appealed in the record.
Additionally, the district court did not commit plain error by failing to instruct the jury that it had to be unanimous as to the specific predicate acts that supported the RICO charge. The Court joined those circuits that have held that "or a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves."
US v. Randall, 2011 WL 5148862 (10th Cir. 2011) (published): a companion case to US v. Knight. Mr. Randall was charged with one count of conspiracy to commit a RICO violation, based on drug activity by Crips members. He sought to have the district court present an instruction on withdrawal from the conspiracy. Such an instruction was not warranted based on evidence that Mr. Randall had once told a prison official that he was no longer part of a gang. The "vague statement" -- which did not even include information about which gang or what illegal activity might be involved -- did not "rise to the level required for withdrawing from a conspiracy." "Insofar as we can infer, this barebones statement is nothing more than the run of the mill statement that prisoners often make to prison officials to convince them that they no longer present a threat to society and so should get a break. That is not enough." Alternatively, Mr. Randall might have told other gang members he had withdrawn, but there was no evidence that he had done so. As a cautionary note, the Court observed in a footnote that it could have denied this issue based solely on the grounds that Mr. Randall did not include the jury instruction he appealed in the record.
Additionally, the district court did not commit plain error by failing to instruct the jury that it had to be unanimous as to the specific predicate acts that supported the RICO charge. The Court joined those circuits that have held that "or a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves."
posted by Anonymous at 4:49 PM
<< Home