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Contents: Chapter
Five--Inchoate Crimes |
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The
following dissenting opinion is associated with Website Note A
on page 194. State
of Connecticut v. Victor Torres
Connecticut
Court of Appeals
676 A.2d 871 May 28, 1996 Schaller, Judge, dissenting.
Because I disagree with the majority on the appropriate scope of review
to be applied to the jury verdict in this case, I respectfully dissent....
My disagreement with the majority concerning the insufficiency claim is
based primarily on the application of the traditional principles of appellate
review to the jury verdict in this case. It is useful to summarize the essential
principles. "We first review the evidence presented at trial, construing
it in the light most favorable to sustaining the facts expressly found by
the trial court or impliedly found by the jury. We then decide whether, upon
the facts thus established and the inferences reasonably drawn therefrom,
the trial court or jury could reasonably have concluded the cumulative effect
of the evidence established the defendant's guilt beyond a reasonable doubt....
I emphasize ... that "...we give deference not to hypothesis of innocence
posed by the defendant, but to the evidence and the reasonable inferences
drawable therefrom that support the jury's determination of guilt. On appeal
we do not ask whether there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask instead, whether
there is a reasonable view of the evidence that supports the jury's verdict
of guilty." ...
By failing to give appropriate deference to the jury's findings and inferences,
the majority has substituted its own view of the evidence and reached a
different result....
From the evidence presented, the jury reasonably could have found that the
defendant held a series of leadership positions in the Waterbury branch
of the Latin Kings, including president, culminating in his position as
attended regional commander. He regularly attended the Latin Kings meetings,
including all of the meetings at which Martinez had been present. On the
day of the emergency meeting, held in the midst of a "war" with a rival
gang, he was present at the sector established as part of the conspiracy
to shoot a member of Los Solidos, and he communicated before the shooting
with Velez on the rooftop. Because no Latin Kings leaders were on the roof,
and since a CB communication immediately preceded the shooting, the jury
reasonably could have inferred that Latin Kings leaders were at sector one,
where the defendant, who was a leader, was located. From the defendant's leadership
position, regular attendance at meetings, the emergency nature of the situation
and the fact that the defendant employed a CB for communication, all of which
were integral parts of the plan to commit the murder, and the plan proceeded
without interruption the defendant's communication with Vel, the jury reasonably
could have inferred that the defendant knew of the plan to kill a member
of Los Solidos, agreed to conspire to commit the murder, shared the intent
to commit the murder and that a co-conspirator committed an act in furtherance
of the conspiracy. Having drawn those reasonable inferences concerning 'the defendant's participation and shared intent, the defendant's disclosure ten days later, in Henderson's words, of "a lot knowledge" about the incident, not readily available "in the general public" could have led to further reasonable inferences of defendant's guilt of the crime charged. The fact that the evidence was disputed or that other inferences could have been drawn is not relevant to our review. As long as evidence existed from which the jury reasonably could have found the facts and drawn the inferences leading to its guilty verdict, it our obligation to defer to those findings and inferences in passing on this sufficiency challenge. The foregoing analysis has established that the jury's inferences were reasonably drawn and that the evidence was sufficient to prove the crime charged. Under those circumstances, the jury's chain of inferences is appropriate and a reasonable view of the evidence exists that supports the jury's verdict of guilty.... An appellate court is not entitled to "sit as a thirteenth juror who may cast a vote again the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude...." I acknowledge that "this is not an easy case [but] it is a case in which the jury's inference of an intent to kill [and intent to conspire] was sufficiently supported by the circumstantial evidence." ...
Accordingly, I would affirm the judgment of the trial court and, therefore,
respectfully dissent. |
|
The
following federal statute is associated with Website Note B on page 194. |
|
The
Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §
1962).
One of the most powerful criminal statutes is the Racketeer Influenced and Corrupt Organizations Act, (RICO) which was enacted into law in 1970, to strengthen the government's ability to prosecute ongoing, criminal enterprises operated by persons engaged in what is known in common parlance as "organized crime." The law permits the prosecution of the entire criminal organization, without regard to the nature or extent of each member's involvement in any particular criminal act. To establish that a person qualifies as a racketeer, the prosecution must prove that a RICO defendant has committed two felonies qualifying as "racketeering activity" (under the RICO statute) within a ten-year period. The late Supreme Court Justice Byron White explained the purpose of this law in the following excerpt from Sedima, S. P. R. L. v. Imrex Co., Inc., 4573 U.S. 479 (1985). "RICO takes aim at 'racketeering activity,' which it defines as any act 'chargeable' under several generically described state criminal laws, any act 'indictable' under numerous specific federal criminal provisions, including mail and wire fraud, and any 'offense' involving bankruptcy or securities fraud or drug-related activities that is 'punishable' under federal law...." Because Congress included forfeiture as one of the criminal penalties, RICO violators are subject to having all property and ill-gotten money "constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962," forfeited to the federal government. Many states have enacted state statutes that parallel the federal RICO law. |
|
Mario Salinas v. United States
Back to TopU.S. Supreme Court December 2, 1997 522 U.S. 52 Justice
Kennedy delivered the opinion of the Court.
The case before us presents two questions: First, is the federal bribery statute codified at 18 U.S.C. § 666 limited to cases in which the bribe has a demonstrated effect upon federal funds? Second, does the conspiracy prohibition contained in the Racketeer Influenced and Corrupt Organizations Act (RICO) apply only when the conspirator agrees to commit two of the predicate acts RICO forbids? Ruling against the petitioner on both issues, we affirm the judgment of the Court of Appeals for the Fifth Circuit.
I
This federal prosecution
arose from a bribery scheme operated by Brigido Marmolejo, the Sheriff
of Hidalgo County, Texas, and petitioner Mario Salinas, one of his principal
deputies. In 1984, the United States Marshals Service and Hidalgo County
entered into agreements under which the county would take custody of
federal prisoners. In exchange, the Federal Government agreed to make
a grant to the county for improving its jail and also agreed to pay the
county a specific amount per day for each federal prisoner housed. Based
on the estimated number of federal prisoners to be maintained, payments
to the county were projected to be $915,785 per year. The record before
us does not disclose the precise amounts paid. It is uncontested, however,
that in each of the two periods relevant in this case the program resulted
in federal payments to the county well in excess of the $10,000 amount
necessary for coverage under 18 U.S.C. § 666. (We denied certiorari
on the question whether the monies paid to the county were "benefits" under
a "Federal program" under §666(b), and we assume for purposes of this
opinion that the payments fit those definitions.) Homero Beltran-Aguirre was one of the federal prisoners housed in the jail under the arrangement negotiated between the Marshals Service and the county. He was incarcerated there for two intervals, first for 10 months and then for 5 months. During both custody periods, Beltran paid Marmolejo a series of bribes in exchange for so-called "contact visits" in which he remained alone with his wife or, on other occasions, his girlfriend. Beltran paid Marmolejo a fixed rate of six thousand dollars per month and one thousand dollars for each contact visit, which occurred twice a week. Petitioner Salinas was the chief deputy responsible for managing the jail and supervising custody of the prisoners. When Marmolejo was not available, Salinas arranged for the contact visits and on occasion stood watch outside the room where the visits took place. In return for his assistance with the scheme, Salinas received from Beltran a pair of designer watches and a pickup truck. Salinas and Marmolejo were indicted and tried together, but only Salinas' convictions are before us. Salinas was charged with one count of violating RICO, 18 U.S.C. § 1962(c), one count of conspiracy to violate RICO, §1962(d), and two counts of bribery in violation of §666(a)(1)(B). The jury acquitted Salinas on the substantive RICO count but convicted him on the RICO conspiracy count and the bribery counts. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. To resolve the case, we consider first the bribery scheme, then the conspiracy.
II
Salinas contends
the Government must prove the bribe in some way affected federal funds,
for instance by diverting or misappropriating them, before the bribe violates
§666(a)(1)(B).... We ... decide that, as a matter of statutory construction, §666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds and that under this construction the statute is constitutional as applied in this case.
III
Salinas directs
his second challenge to his conviction for conspiracy to violate RICO.
There could be no conspiracy offense, he says, unless he himself committed
or agreed to commit the two predicate acts requisite for a substantive RICO
offense under §1962(c). Salinas identifies a conflict among the
Courts of Appeals on the point. Decisions of the First, Second, and Tenth
Circuits require that, under the RICO conspiracy provision, the defendant
must himself commit or agree to commit two or more predicate acts. ...
Eight other Courts of Appeals, including the Fifth Circuit in this case, take
a contrary view.... Before turning to RICO's conspiracy provision, we note the substantive RICO offense, which was the goal of the conspiracy alleged in the indictment. It provides: "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). The elements predominant in a subsection (c) violation are: (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity. ... "Pattern of racketeering activity" is a defined term and requires at least two acts of "racketeering activity," the so-called predicate acts central to our discussion.... "Racketeering activity," in turn, is defined to include "any act ... involving ... bribery ... which is chargeable under State law and punishable by imprisonment for more than one year." ... The Government's theory was that Salinas himself committed a substantive §1962(c) RICO violation by conducting the enterprise's affairs through a pattern of racketeering activity that included acceptance of two or more bribes, felonies punishable in Texas by more than one year in prison.... The jury acquitted on the substantive count. Salinas was convicted of conspiracy, however, and he challenges the conviction because the jury was not instructed that he must have committed or agreed to commit two predicate acts himself. His interpretation of the conspiracy statute is wrong. The RICO conspiracy statute, simple in formulation, provides: "It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." 18 U.S.C. § 1962(d). There is no requirement of some overt act or specific act in the statute before us, unlike the general conspiracy provision applicable to federal crimes, which requires that at least one of the conspirators have committed an "act to effect the object of the conspiracy." ... The RICO conspiracy provision, then, is even more comprehensive than the general conspiracy offense in §371.... A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other. See Pinkerton v. United States, ... (1946) ("And so long as the partnership in crime continues, the partners act for each other in carrying it forward"). If conspirators have a plan, which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. As Justice Holmes observed: "[P]lainly a person may conspire for the commission of a crime by a third person."... A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense.... The point Salinas tries to make is in opposition to these principles, and is refuted by Bannon v. United States, ... (1895). There the defendants were charged with conspiring to violate the general conspiracy statute, ... which requires proof of an overt act.... One defendant objected to the indictment because it did not allege he had committed an overt act.... We rejected the argument because it would erode the common-law principle that, so long as they share a common purpose, conspirators are liable for the acts of their co-conspirators. We observed in Bannon: "To require an overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination to be alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offence nugatory."... The RICO conspiracy statute, §1962(d), broadened conspiracy coverage by omitting the requirement of an overt act; it did not, at the same time, work the radical change of requiring the Government to prove each conspirator agreed that he would be the one to commit two predicate acts. Our recitation of conspiracy law comports with contemporary understanding. When Congress passed RICO in 1970, ... the American Law Institute's Model Penal Code permitted a person to be convicted of conspiracy so long as he "agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime." ... As the drafters emphasized, "so long as the purpose of the agreement is to facilitate commission of a crime, the actor need not agree 'to commit' the crime." ... The Model Penal Code still uses this formulation. See Model Penal Code §5.03(1)(a), 10 U. L. A. 501 (1974). 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. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself.... It makes no difference that the substantive offense under subsection (c) requires two or more predicate acts. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense. True, though an "enterprise" under §1962(c) can exist with only one actor to conduct it, in most instances it will be conducted by more than one person or entity; and this in turn may make it somewhat difficult to determine just where the enterprise ends and the conspiracy begins, or, on the other hand, whether the two crimes are coincident in their factual circumstances. In some cases the connection the defendant had to the alleged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the Government's case. Perhaps these were the considerations leading some of the Circuits to require in conspiracy cases that each conspirator himself commit or agree to commit two or more predicate acts. Nevertheless, that proposition cannot be sustained as a definition of the conspiracy offense, for it is contrary to the principles we have discussed. In the case before us, even if Salinas did not accept or agree to accept two bribes, there was ample evidence that he conspired to violate subsection (c). The evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under §1962(d). As a final matter, Salinas says his statutory interpretation is required by the rule of lenity. The rule does not apply when a statute is unambiguous or when invoked to engraft an illogical requirement to its text. ... The judgment of the Court of Appeals is Affirmed. |
| Return
to: Criminal
Law's Main Page || Table of Contents
|| Suggested
Links || About
the Author || Roxbury
Publishing Company's Main Page || A Note from the
Author |
| Support
Materials: Chapter 1 || Chapter 2 || Chapter 3 || Chapter 4 || Chapter
5 || Chapter 6
|| Chapter 7
|| Chapter 8 |