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UNITED STATES v. BATES

September 21, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS BATES, BERNARD GREEN, JEROME CROWDER, EDWARD WILLIAMS, LOUIS HOOVER and ROLAND LEWIS, Defendants.



The opinion of the court was delivered by: RICHARD MILLS

 RICHARD MILLS, District Judge*

 Where defendants are convicted of violating 18 U.S.C. § 1962(d) ("RICO Conspiracy") on the basis of unspecified predicate acts, can those defendants be held accountable, for purposes of sentencing, for all the predicate acts charged in the indictment?

 In this case, no.

 I. FACTUAL BACKGROUND

 This case involved the jury trial and sentencing of six members of the El Rukns--an infamous Chicago street gang. All of the defendants held positions of leadership within the organization and were responsible for the supervision of the gang's daily activities, consisting largely of illegal drug distribution.

 The trial of these six defendants -- commonly referred to as "El Rukn III in this district--consumed 28 full trial days over a span of four months. The case was tried before an anonymous jury -- even the Court knew the jurors only by their respective numbers. All six defendants were in custody and each defendant was represented by a separate attorney appointed under the Criminal Justice Act. The evidence consisted of testimony from 31 witnesses, and days of listening to tapes of telephonic overhears and wiretaps, amassing a total of 6,544 pages of transcript -- excluding sentencing. After deliberating four days, the sequestered jury returned its verdicts. And the Court subsequently imposed the following sentences: BATES Life GREEN Life CROWDER Mandatory Life WILLIAMS Life HOOVER 35 years LEWIS 40 years

 Count I of the second superseding indictment charged all of the defendants with violating 18 U.S.C. § 1962(d) ("RICO Conspiracy"). In support of both the RICO Conspiracy charge (§ 1962(d)) alleged in Count I and the substantive RICO charge (18 U.S.C. § 1962(c)) alleged in Count II, the indictment listed 64 separate predicate acts alleging various acts of murder, conspiracy to commit murder and drug offenses. *fn2" All of the defendants--with the exception of Defendant Hoover--were subsequently found guilty of RICO Conspiracy.

 At sentencing, the Government sought to hold the defendants accountable for the acts of murder and conspiracy to commit murder listed as predicate acts in the indictment pursuant to United States Sentencing Guideline 2E1.1(a)(2). The defendants uniformly objected to the inclusion of those violent offenses for purposes of sentencing and this Court sustained that objection.

 II. ANALYSIS

 18 U.S.C. § 1962(d) 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." Specifically, Defendants were charged with conspiring to violate 18 U.S.C. § 1962 (c) which states:

 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.

 To prove guilt with respect to RICO Conspiracy, the Government must show: (1) the existence of an enterprise; (2) that the defendant was associated with that enterprise; (3) that the defendant knowingly conspired to conduct or participate in the affairs of the enterprise directly or indirectly, through a pattern of racketeering activity; and (4) that the enterprise engaged in interstate commerce or that the enterprise's activities affected interstate commerce. United States v. Neapolitan, 791 F.2d 489 (7th Cir. 1986), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986). To establish a "pattern of racketeering activity" for purposes of RICO Conspiracy, the Government must prove beyond a reasonable doubt that the defendant agreed that ...


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