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State v. Beverly Refines RICO to Favor the State (Even More)

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The Supreme Court of Ohio recently issued a decision which may significantly expand prosecutors' ability to use the Ohio Racketeer Influenced and Corrupt Organizations (RICO) statute for a broader array of crimes. As a federal law, the RICO statutes were originally passed in 1970 as a means of tying organized crime bosses to the various schemes and plots their subordinates carried out, and thus theoretically eliminating or drastically reducing criminal families and syndicates more effectively than by simply catching the low level perpetrators at their individual criminal acts. Subsequently, states have passed their own RICO-styled statutes to allow them to prosecute the same types of crimes and actors at the state level.

In Ohio, R.C. 2923 is that RICO equivalent. Both federal and state RICO statutes have two essential elements to allow their use for charging and conviction: The defendant(s) must have engaged in "a pattern of corrupt activity" by means of being part of an "enterprise" for which or on whose behalf the defendant(s) acted. The definition of "enterprise" is rather elastic.

The statute says an enterprise "includes any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. 'Enterprise' includes illicit as well as licit enterprises." A "pattern of corrupt activity" is exactly what it sounds like: a pattern of criminal activities, i.e., repeated actions of a similar kind over time.

In the Supreme Court's decision, State v. Beverly, 2015-Ohio-219, it focused on the proof requirements for finding that an enterprise, along with a pattern of corrupt activity, is present. In the underlying case, Beverly and a partner had stolen or received stolen vehicles outside of Clark County, then used those vehicles to enter Clark County and commit burglaries. The vehicles were thus both transport and haulage, and could not be immediately traced back to the defendants.

The two had been convicted of the crimes, and found to be guilty of committing the pattern of corrupt activity represented by the vehicle thefts and burglaries, and their repetition, and on that basis also found guilty of being part of an enterprise through which they committed those actions.

The appeals court, however, reversed the conviction, on the basis of a failure by the State to provide evidence of the defendant's involvement in an organization, functioning as a continuing unit, with a structure separate and apart from the pattern of corrupt activity. For years, this kind of enterprise has been the basis of conviction – it exists independent of the corrupt activity, may carry out many types of actions, some licit and some not, and most importantly, must be separately proven from the corrupt activity.

In Beverly, the Supreme Court of Ohio ruled that the State only needs to prove the pattern of corrupt activity in those cases where the evidence for the pattern also suffices to support an inference of the existence of an enterprise. This is a boon to prosecutor's because, as the Court admits, an enterprise in these sorts of prosecutions is typically de facto, not a legal or formal arrangement where independent documentation might exist to show the enterprise. Instead, an enterprise is usually an agreement to cooperate with each other for criminal gain, informal and undocumented.

The Supreme Court recognized that the evidence of one doesn't necessarily prove the other, but declared that "logically, evidence that proves one of the elements can sometimes prove the other, even though it doesn't necessarily do so." Thus, the Court held that in the Beverly case, the proof that the two men had stolen or received stolen cars, then used those cars as transport to and from burglaries, was enough for a jury to infer the existence of a criminal enterprise and convict them under RICO charges rather than as simple co-conspirators or accomplices.

The only test of the proof for both from the proof of one that the Court offered was under a "sufficiency of the evidence" test, whereby if the evidence is viewed by any rational trier of fact, in the light most favorable to the prosecution, and it can find the essential elements of the crime proven beyond a reasonable doubt, then the verdict stands. In Beverly, the Court found that plenty of evidence existed for the proposition that the two men "constituted an association-in-fact enterprise and that they engaged in a pattern of corrupt activity."

The Court gave lip service at the beginning of its opinion to the fact that the enterprise must be the means of carrying out the pattern of corrupt activity, and not merely an association of two people who also commit crimes but as dissenting Justice Lanzinger noted in her opinion, the majority opinion actually "annihilates the element of enterprise." At a minimum, she goes on, the majority decision "waters the concept [of enterprise] down to mean two or more people acting together to commit the same crime."

That is certainly the de facto result of the opinion, where two thieves who committed crimes together are now of the same stature and criminal culpability as Mafia dons and drug kingpins, a definite expansion of the RICO statute beyond its purpose and intent by prosecutor's more zealous than principled, and a Court perfectly willing to sacrifice civil liberties for perceived order.

Read more on this case: State v. Beverly