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Simple question, simple answer

Ohio's Corrupt Practices Activity statute, modeled after the Federal RICO law, does exactly what it says:  it prohibits one employed or associated with an enterprise from engaging in two or more incidents of corrupt activity (basically, committing crimes).  That's what the Ohio Supreme Court held last week in State v. Griffin by a 6-1 vote

Of course, you have questions.  Probably the biggest is, "what is an 'enterprise'"?  If Joe and Bill get high together, and each goes out (separately) and steals stuff to support their habit, is that an enterprise?  If Bob and Jack each burglarize vacant houses to steal copper out of them, and occasionally do that together, are they an enterprise?

Don't look to Griffin for the answer.

The facts in Griffin - which you have to read Justice Lanzinger's dissent to find out - are that Griffin and a co-defendant, Franklin, had been convicted of various drug crimes, with an OCPA charge thrown in.  Griffin appealed to the 10th District, which affirmed his conviction.  Franklin appealed and won, on the grounds that the instruction on the OCPA didn't adequately explain the term "enterprise."  The State never appealed that.  After that, Griffin got his appeal reopened, and the 10th District reversed his conviction, too.  The Supreme Court accepted a certified conflict (the conflict being an 18-year-old case out of the 9th District), and also accepted the State's appeal.

So what's issue?  How was the jury instruction insufficient?  You'd have to read the dissent, and the 10th District's opinion, to figure that out, too.  There are several US Supreme Court cases interpreting the enterprise requirement for the RICO statute.  US v. Turkette, decided in 1981, holds that an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit."  In 2009, the Court expanded on that in Boyle v. US, holding that an enterprise requires at least three structural features:  (1) purpose, (2) relationships among those associated with the enterprise, and (3) sufficient longevity to permit the associates to pursue the purpose.

That's really not addressed by the majority opinion; it mentions that Griffin "asked for a definition of 'enterprise' based on Turkette or Boyle to convey that 'enterprise' requires that the people in the organization have acted in concert and with a common purpose," notes that "it is difficult to summarize certain legal principles into terms that lay people can use to reach factual conclusions," and disposes of the contention with a Yoda-like

There are times when more information is not better.  There are times when more information is more likely to confuse than to inform a jury.

You're half-expecting to see that followed up with "do or do not; there is no try."

And the key question here, addressed by both Boyle and Turkette but not at all in Griffin, is whether the enterprise has to have an existence separate from the pattern of corrupt activity.  The Hell's Angels or the Mafia would be a classic example of a RICO enterprise:  it exists as a separate organization, but also engages in a pattern of criminal activity.  Do two guys going out together on an occasional basis to steal cars meet that requirement?

That's the fact pattern in State v. Beverly, which is also pending before the court.  As I noted when I discussed the oral argument in the case, that presents a close call:  the activity between Beverly and his cohort happened over a three-month period of time, in several counties.

Griffin presents the sole question of whether the jury instructions, which simply repeated the statutory language, were sufficient, and the court did no more than answer that they were.  I'd hoped that Beverly would provide a thorough analysis of the application of Turkette and Boyle to the Ohio statute, and a determination of whether a more expansive definition of the OCPA's enterprise requirement was necessary.  The problem is that any such determination would have to overcome Griffin.  As it stands now, you can talk about structures and associations and enterprises and the Federal cases all you want, and a judge knows the Supreme Court has told him that all he has to do is read the jury the statute.  And that's what he's going to do.


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