RICO Runs Consecutive to Predicate Offense


There are drug trafficking cases that I wonder if my client's case will go federal. Then there are the cases like Arnaldo Mirandas where his trafficking case remained a State case (that's good) but Uncle RICO came to Columbus and paid Arnaldo a visit. Mr. Miranda and a few other cannabis capitalists were rounded up and arrested in connection with their involvement in a marijuana trafficking enterprise. Mr. Miranda confessed (I love the irony) to the police that he was just the money guy.

They were eventually indicted on 3 counts trafficking in marijuana (F2) and 3 counts possession of marijuana (F2). Then Uncle RICO showed up as an F1 under R.C. 2923.32. Mr. Miranda pled guilty to 2 counts – F2 RICO and F2 trafficking. He was sentenced to 6 years on the RICO and 8 years on the trafficking to be served consecutively. Mr. Miranda appealed his sentence arguing merger per allied offenses (and a corresponding Double Jeopardy argument) as well as the "methodology employed by the trial court to justify" the consecutive sentences (R.C. 2929.11 and 2929.12) and contrary to law.

There was no objection to the sentence by the defendant thus the Court of Appeals was limited to a plain error review (to prevent a manifest miscarriage of justice). A person may be punished for multiple offenses arising from a single criminal act so long as the General Assembly intended cumulative punishment. In 1997, the Ohio Supreme Court held that the RICO statute was designed to impose cumulative liability for a criminal enterprise. (State v. Schlosser, 79 Ohio St.3d 329).

However, Mr. Miranda pointed out that a 2006 Amendment to R.C. 2923.32 demonstrates that the General Assembly no longer intended to allow cumulative punishment in RICO cases. In that amendment, division (D) of 2923.32 was deleted which previously stated that RICO "does not preclude the application of any other criminal or civil remedy". The Franklin County Court of Appeals sidesteps this argument by concluding that the 2006 Amendment actually created a new chapter of the Revised Code, R.C. 2981 (forfeitures) and thus just cleaned up the remaining divisions in the R.C. addressing forfeitures. The Court held, "[W]e find no evidence that the General Assembly intended to permit merger of corrupt activity with predicate offenses . . .". as a result of deleting the sections referenced by Mr. Miranda.

The "methodology" argument was a non-starter, too. The 8 years for trafficking was mandatory. No issue there. However, the 6 years for RICO was tacked on because, as argued by Mr. Miranda, because the prosecutor mentioned "Mexican drug cartels" and the Court mentioned this on the record at sentencing, too. Mr. Miranda argued that there was no evidence in the record to support this theory.

Ohio Rules of Evidence do not apply to sentencing hearings and the prosecution can present "information" relevant to sentencing. Not evidence. Moreover, the defendant did not object to this during the sentencing hearing. Apparently, defense counsel mentioned Mexican cartels before the prosecutor did when he referenced the $1 million in cash found on Mr. Miranda and that the cash was "not his", it gets "shipped back" to Arizona and maybe "goes to Mexico".

Finally, the transcript indicated that the trial court referenced the Mexican drug cartels in reference to the length of the sentence imposed, not as the basis for concurrent sentencing.

RICO can be imposed consecutively to predicate offenses. Object to "information" mentioned by the prosecutor if it is not relevant to sentencing. Object to consecutive sentencing and preserve that issue for appeal.