Fourth Circuit: RICO Conspiracy not a crime of violence: Simmons

The Fourth Circuit determines that Rico Conspiracy is not a crime of violence in the Simmons Case.  This is a big case with a lot of different things in it for us to consider so we are going to cover this in parts.  Part 1 is coming out today and Part 2 will come out later this week.

Simmons and the Charges

Simmons and others were charged with RICO conspiracy, several Violent Crimes in Aid of Racketeering, and several 924(c) charges.  The charges are related to several robberies, murders and attempted murders in Virginia.  There is an extensive set of alleged facts that I encourage you to read on your own.  It appears to be tied to alleged gang activity.

The First Charge was Conspiracy to Violate the RICO Statute, 18 U.S.C. 1962(d).  There was a “Notice of Special Sentencing Factors” that alleged murders.   Those murders were in violation of section 12.2-32 of the Virginia Code.

There were also several Violent Crime in Aid of Racketeering (VICAR) offenses that stemmed from the Defendants’ alleged murderous conduct.  For each attempted murder, the second superseding indictment accused Simmons and others of “Attempted Murder in Aid of Racketeering Activity” and “Assault with a Dangerous Weapon in Aid of Racketeering Activity.”

Finally, for each murder and attempted murder victim the second superseding indictment alleged a separate 924(c) count.  “Of particular relevance here is Count 30, which alleged that Defendants knowingly possessed, brandished, and discharged a firearm during two crimes of violence: the “aggravated” RICO conspiracy alleged in Count One and the VICAR Assault offense set forth in Count 29, which alleged that Defendants assaulted S.M.’s unidentified neighbors.

The Jury found Simmons and the others guilty.  After the trial the defendants moved to set aside the verdict, including an argument that the 924(c) counts, including count 30, was invalid because none of the predicate offenses were categorically a crime of violence.  “[T]he court concluded that Defendants’ convictions on Count 30 should be vacated because neither the ‘aggravated’ RICO conspiracy in Count One nor the VICAR Assault offense in Count 29 was a ‘crime of violence.’”  The government appealed this.

924(c) and crimes of violence:  How to determine:

First off the court reminded the parties of the state of 924(c):  “Pursuant to 18 U.S.C. § 924(c)(1)(A), it is a crime to use, carry, or possess a firearm “during and in relation to any crime of violence.”  Section 924(c)(3) sets forth two definitions of “crime of violence.” The only one that remains valid, § 924(c)(3)(A) (“the force clause”), defines a “crime of violence” as any crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

As we have previously discussed, in order to engage in this analysis, you first have to determine if you are referring to a divisible statute, in which case you use the modified categorical approach.  In the Modified Categorial approach you look at documents like the indictment and jury instructions “solely to determine “which of the statute’s alternative elements formed the basis” of the defendant’s conviction…From there, we apply the categorical approach analysis to that offense to determine whether it is a crime of violence.”

If the statute is divisible, then you use the categorical approach:

“The categorical approach applies to “indivisible” statutes, those that set out a single set of elements defining the crime. United States v. Bryant, 949 F.3d 168, 172 (4th Cir. 2020). It asks whether the elements of the offense “necessarily require the use, attempted use, or threatened use of force.”

Further, in Mathis we discussed how to further determine whether to use the categorical approach or the modified categorical approach:

“[The] Supreme Court clarified that to determine whether an “alternatively phrased statute” is indivisible (thus permitting only use of the categorical approach) or divisible (requiring use of the modified categorical approach), we must determine whether the alternative statutory factors are “means” or “elements.” … Statutory factors are “means,” and do not create a divisible statute, if they are merely “ ‘alternative methods’ of committing one offense.” Statutory factors are elements, and thereby create a divisible statute, if their presence increases the statutory maximum punishment.”

What is a RICO case:

The Fourth Circuit has explained that

“We have said that there are only three essential elements in any  § 1962(d) prosecution:

(1) “that an enterprise affecting interstate commerce existed”;

(2) “that each defendant knowingly and intentionally agreed with another person to conduct or participate in the affairs of the enterprise” and

(3) “that each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering [activities]…

“[R]acketeering activity” includes “any act or threat involving murder” or a host of other state law offenses “which is chargeable under State law and punishable by imprisonment for more than one year,” as well as myriad enumerated federal criminal offenses.

Further, the Supreme Court has stated that a person can complete a RICO conspiracy without ever committing or agreeing to commit the two or more racketeering acts:

“A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime’s completion.”

Further, the Supreme Court has indicated that a RICO conspiracy exists even if no co-conspiracy completes any of the agreed upon racketeering acts.

RICO is not a crime of violence under 924(c)

First off the court noted that:

“Every circuit to consider whether a RICO conspiracy is a “crime of violence” has held, under the categorical approach, that it is not… We could reach the same result here... As noted, the  § 1962(d) offense is complete once the agreement is reached…because “the object of a RICO conspiracy is ‘to engage in racketeering,’ not to commit each predicate racketeering act.”

The Court also indicated that it was similar to a Conspiracy to Commit a Hobbs Act Robbery.

The court noted that even if the RICO conspiracy was divisible, there are several types of crimes by which a person could use to complete the elements of a RICO conspiracy without using or attempting to use or threatening to use physical force.  This is because “§ 1961(1) lists a number of crimes which can serve as the means for satisfying that element of an aggravated RICO conspiracy as they authorize the imposition of a life sentence.”  Those crimes include:

• Distributing more than one kilogram of heroin or 50 grams of methamphetamine (18 USC 1961(1)(D), 841(a)(1), (b)(1)(A)(i), (viii)
• Sex trafficking involving fraud or coercion (18 USC 1591(a), 1961(1)(B), 1963(a))
• Conspiracy to Commit Murder in some states.

Because you can commit an aggravated RICO conspiracy by committing crimes without the use of force, aggravated RICO conspiracy is not a crime of violence.  This means that count 30, a 924(c) in furtherance of a crime of violence, must fall.  This is why the District court vacated count 30.

There is more to this case that we will cover in a future blog.