United States v. Burhoe, __ F.3d ___, 2017 WL 3047056 (1st Cir., Sept. 8, 2017)
The Court reversed Hobbs Act and RICO convictions in a case which involves union members/defendants who allegedly extorted property from nonunion companies when they threatened to take certain actions, including picketing, if those companies did not give union members jobs. The government further obtained convictions under the Hobbs Act and RICO that the defendants extorted wages, benefits, and rights to democratic participation within the union from their fellow union members.
The court vacated the conviction for extortion of a nonunion company on count 4 and remanded for a new trial because the jury instructions allowed the jury to convict upon a finding that the work performed was merely unwanted, and on all other counts, the court reversed the convictions.
The court underwent a detailed analysis to find that the defendants did not commit or conspire to commit the Hobbs Act violations. As a result, it failed to find that Count 1, which alleged racketeering and count 2, which alleged racketeering conspiracy were proven. The government contended that Local 82 itself was a racketeering enterprise. Because the court reversed all but one of the extortion count convictions, the court was left with at most one racketeering act by defendant Burhoe. Because the government was required to prove a “pattern of racketeering activity,” which has been defined as requiring at least two predicates, it found insufficient evidence to support Burhoe’s and Perry’s convictions on count 1.
Regarding the conspiracy conviction, the court found insufficient evidence to meet the government’s burden. The court stated that-
“While it is unnecessary to prove that the defendants committed two predicate offenses in order to prove a racketeering conspiracy, the government does have to prove that the defendants “agreed with one or more others that two predicate offenses be committed.” Id. at 1562. Because we find that only one of the predicate acts might constitute extortion, we find that the government provided insufficient evidence that the defendants agreed to engage in a pattern of racketeering activity. We therefore reverse Burhoe and Perry’s convictions on count 2.”
Id. at *22.
Editor Analysis – The court is correct that the government does not have to prove that the defendants committed two predicate offenses in order to prove a racketeering conspiracy. The Court’s statement that “the government does have to prove that the defendants “agreed with one or more others that two predicate offenses be committed’” is also correct under a Salinas analysis. However, the application is puzzling. Is the Court saying that the proof of a RICO conspiracy when defendants “agreed with one or more others that two predicate offenses be committed’” is nullified when the actual commission of the offense (here, Hobbs Act) is legally impossible? Doesn’t this focus the onus on the actual commission of the predicate offense when the “agreement” that a conspirator would commit a violation of RICO is sufficient proof for RICO conspiracy?
Under this analysis, practitioners must be able to prove that the object predicate offenses which defendants agreed conspirators would commit are in fact actual predicate offenses. In civil RICO, but not criminal RICO, this is somewhat consistent with Beck v. Prupis, in which the commission of at least object predicate offense which causes an injury is required to prove RICO conspiracy.
David J. Stander is a civil RICO Attorney who focuses his practice on civil RICO litigation and consulting.