USA v. Addison et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CR-00134-FDW-DSC
THIS MATTER is before the Court on Defendant’s “Motion to Dismiss,” Doc. 640, filed
July 1, 2017 and the Government’s “Response to Defendant Gilmore’s [Motion to Sever and]
Motion to Dismiss,” Doc. 643, filed July 3, 2017.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned respectfully recommends that Defendant’s Motion be denied, as discussed below.
I. FACTUAL BACKGROUND
Defendant is alleged to be one of eighty-three members of the United Blood Nation (UBN)
who were indicted on May 16, 2017 by a Grand Jury in the Western District of North Carolina.
Defendant is charged in Count One of the Indictment with violating 18 U.S.C. § 1962(d),
Racketeer Influenced Corrupt Organization-Conspiracy. See Bill of Indictment, Doc. 3. All eighty-
three Defendants are named in Count One of the Indictment. Docket Call as to all Defendants is
currently scheduled for September 5, 2017.
UNITED STATES OF AMERICA, )
)
)
)
v. ) MEMORANDUM AND
) RECOMMENDATION
CYNTHIA GILMORE,
a/k/a “Cynthia Young”
a/k/a “Lady Bynt”
)
)
)
)
Defendant. )
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II. ANALYSIS
Defendant moves to dismiss “because the charge fails to establish jurisdiction over [her]
and the subject matter and fails to state a claim upon which relief can be granted.” Doc. 640 at 1.
Federal Rule of Criminal Procedure 7(c)(1) provides that an indictment “must be a plain,
concise, and definite written statement of the essential facts constituting the offense charged ....”
Fed. R. Crim. Pro. 7(c)(1). The Fourth Circuit has summarized the elements of a RICO conspiracy
as follows:
To satisfy § 1962(d), the government must prove [1] that an enterprise affecting
interstate commerce existed; [2] that each defendant knowingly and intentionally
agreed with another person to conduct or participate in the affairs of the enterprise;
and . . . [3] that each defendant knowingly and willfully agreed that he or some
other member of the conspiracy would commit at least two racketeering acts.
United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015) (quoting United States v.
Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)).
The Second Circuit explained the elements of a RICO conspiracy as follows:
18 U.S.C. § 1962(d), the ‘RICO conspiracy statute,’ provides that it is unlawful “to
conspire to violate any of the provisions of subsections (a), (b) or (c) of this
section.” Section 1962(c), the familiar ‘substantive’ RICO provision, criminalizes
the participation in the affairs of an enterprise affecting interstate commerce
through a pattern of racketeering activity. Section 1962(d), has as its target the act
of agreement—here, the agreement to engage in activity that implicates section
1962(c). Accordingly, to list adequately the elements of section 1962(d), an
indictment need only charge—after identifying a proper enterprise and the
defendant's association with that enterprise—that the defendant knowingly joined
a conspiracy the objective of which was to operate that enterprise through an
identified pattern of racketeering activity. Neither overt acts, United States v.
Torres Lopez, 851 F.2d 520, 525 (1st Cir.1988), nor specific predicate acts that the
defendant agreed personally to commit, United States v. Neapolitan, 791 F.2d 489,
495–98 (7th Cir. 1986), need be alleged or proved for a section 1962(d) offense.
United States v. Glecier, 923 F.2d 496, 500 (7th Cir. 1991). An allegation of RICO conspiracy is
sufficient when it “[1] states all of the elements of the offense charged, [2] informs [the defendant]
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of the nature of the charge so that a defense can be prepared, and [3] enables the defendant to
evaluate any possible double jeopardy problems presented by the charge.” Id. at 499. It is not
necessary to allege evidentiary details. See United States v. Nabors, 45 F.3d 238, 240-41 (8th Cir.
1995) (the Government is not required to reveal all of its proof in the bill of indictment).
In Glecier, the RICO conspiracy count did not allege that the defendant personally
committed or agreed to commit any specific racketeering act. Instead, it alleged that during the
specified time period, the defendants agreed "to conduct and participate in the conduct of the
affairs of [the enterprise], directly and indirectly, through a pattern of racketeering activity, as that
term is defined in [18 U.S.C. § 1961], said racketeering activity consisting of multiple acts
involving bribery" under the applicable state statute. 923 F.2d at 498. The court found that by
alleging the time period during which the conspiracy operated, the locations and courts, the
principal actors, and with some detail, the specific types of predicate crimes to be committed and
how the conspiracy operated, the indictment adequately enabled [the defendant] to prepare a
defense. Id. at 500.
Applying those standards here, the Indictment “[1] sets forth the elements of the offenses
charged, [2] informs Defendant of the nature of the charge against her so that a defense can be
prepared, and [3] enables Defendant to evaluate any possible double jeopardy problems. As in
Glecier, this Indictment alleges that during a specified time period, beginning in at least 2009
through the present, Defendants agreed "to conduct and participate in the conduct of the affairs of
the United Blood Nation, directly and indirectly, through a pattern of racketeering activity, as that
term is defined in Title 18, United States Code, Sections 1961(1) and (5), which racketeering
activity consisting of multiple acts involving violations of federal and state law.” Doc. 1,
Indictment at 24.
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The Indictment is approximately 162 pages long and details the nature of the racketeering
enterprise, its membership, activities, and modus operandi. In addition to the predicate acts, the
Indictment lists hundreds of overt acts attributable to members of the enterprise in furtherance of
the conspiracy. As the Supreme Court has stated, unlike a traditional conspiracy, a RICO
conspiracy contains “no requirement of some overt act or specific act.” Salinas v. United States,
522 U.S. 52, 63 (1997). As such, to secure a conviction for RICO conspiracy, the Government is
not required to prove, or even allege, the actual completion of a single racketeering act by the
defendant or any other member of the conspiracy. Cornell, 780 F.3d at 624. The Government need
only prove that co-conspirators “agree[d] to pursue the same criminal objective,” regardless of
whether that objective was ever initiated or completed. Salinas, 522 U.S. at 63. To that end, the
Government may allege the types of crimes that constitute the pattern of racketeering activity
without alleging specific racketeering acts. Glecier, 923 F.2d at 500-01.
This Indictment adequately places Defendant on notice such that she will not be prejudiced
at trial.
With regard to Defendant’s jurisdictional arguments, a RICO prosecution may be brought
in any district where some of the enterprise's criminal activity occurred. See, e.g., United States v.
Pepe, 747 F.2d 632, 660 n. 44, 664 n. 56 (11th Cir.1984) (venue in RICO case for extortionate
debt collection that occurred in New York was proper in Southern District of Florida where other
racketeering activities occurred); United States v. Persico, 621 F.Supp. 842, 858 (S.D.N.Y.1985)
(holding that it makes no difference whether any individual defendant was in the district, as long
as the Government establishes that the defendant participated in an enterprise that conducted illegal
activities in the district). Venue for a RICO offense also lies in any district where the enterprise
conducted business. See United States v. Umana, 2009 WL 1443395 at *7 (W.D.N.C. May 20,
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2009), aff’d, 750 F.3d 320 (4th Cir. 2014) (citations omitted). Since much of the criminal activity
as well as acts of racketeering occurred in Charlotte, it was proper to bring the Indictment in this
District. The fact that Defendant may have lived in the Eastern District of North Carolina or that
some of her Co-Defendants are from other states is irrelevant to the jurisdictional and venue
analyses.
III. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendant’s Motion to Dismiss be denied.
IV. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that pursuant to 28 U.S.C. §636(b)(1)(c), written objections
to the proposed findings of fact and conclusions of law and the recommendation contained in this
Memorandum must be filed within fourteen (14) days after service of same. Failure to file
objections to this Memorandum with the District Court constitutes a waiver of the right to de novo
review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005);
Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363,
1365 (4th Cir. 1989). Moreover, failure to file timely objections will also preclude the parties from
raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d
at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.
1984).
The Clerk is directed to send copies of this Memorandum and Recommendation to counsel
for the parties; and to the Honorable Frank D. Whitney.
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SO RECOMMENDED.
Signed: July 20, 2017
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