United States v. Rich (6th Cir. September 2021)

The Federal Docket

September 27, 2021

RICO – Sufficient evidence exists supporting a RICO conviction where there is an agreement to engage in a racketeering enterprise, even if the enterprise has not yet been formed.

Sentencing Guidelines/Drug Premise – A defendant is subject to the two-level enhancement under 2D1.1(b)(12) for maintaining a drug premises where another defendant maintains a premises as part of a jointly undertaken criminal activity.

Michael Rich and seven co-defendants were convicted by a jury on multiple RICO counts for their respective roles in a motorcycle club that trafficked in methamphetamine. On appeal, Rich and the others raised over seventy claims of error, but the Sixth Circuit rejected them all, affirming both their convictions and their sentences. All but two of the defendants’ claims were only addressed by the court in an unpublished opinion.

In the published opinion, the Sixth Circuit held that the district court’s use of future-tense language in its jury instruction regarding 18 U.S.C. §§ 1962(c) and (d) was an accurate statement of the law. Since the charge in question was a conspiracy charge that criminalizes an agreement rather than a substantive criminal offense, it is possible for a person to be guilty of it even if the planned racketeering enterprise had not yet been formed.

The court also found that the imposition on defendant Victor Carlos Castano of a two-level sentencing enhancement under U.S.S.G. § 2D.1.1(b)(12) through the relevant conduct principles of § 1B1.3(a)(1)(B) was correct, even though Castano himself did not maintain a premises for drug manufacturing or distribution. Adopting the Eleventh Circuit’s approach to the question, the court held that nothing in § 2D.1(b)(12) says that it cannot be applied to a co-defendant based on jointly undertaken criminal activity as defined in the relevant conduct provision.

Judge Donald wrote separately, dissenting as to the majority opinion regarding the jury instructions but concurring with respect to all other issues. She argued that under the relevant precedents, the current existence of an enterprise is a separate, necessary element of any RICO charge.

Appeal from the Eastern District of Michigan
Opinion by Griffin, joined by Suhrheinrich
Concurrence in part and dissent in part by Donald

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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