United States v. Andrews, 754 F. Supp. 1197, 1203 (N.D. Ill. 1990).
On September 30, 1991, in response to defendants' joint objection to the anticipated introduction of violent crimes evidenced by the Government and in light of the orders on severance, this Court entered an order limiting the introduction of such evidence at trial.
Yet, at sentencing, the Government argued that "because the murders were included in Count One and the jury based its verdict on them, they must be considered as part of the conduct proven against the defendants in the racketeering conspiracy and therefore must be taken into account for sentencing purposes under the Guidelines." The Government maintained their position despite admitting that "these same murders and acts of violence, however, were not specifically charged against these defendants as part of their individual 'patterns of racketeering activity' in Count Two (Substantive Racketeering), which consisted entirely of narcotics based activity." (Emphasis added.)
"The right to due process requires adequate notice and a meaningful opportunity to be heard." Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568 (7th Cir. 1992) (emphasis in original). "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), quoting Baldwin v. Hale, 1 Wall. 223, 233.
Here, to hold the defendants responsible for the violent crimes alleged as predicate acts in Count I--murder and conspiracy to commit murder--would offend due process. Both the prior rulings of this Court and the representations of the Government made clear that these defendants were to be tried on the basis of their involvement in illegal narcotics activity. Accordingly, evidence not related to that narcotics activity was presented at trial in an abbreviated fashion, if at all. Limitations on the introduction of such evidence undoubtedly influenced both the tactics and strategy of the defendants at trial and to now hold them responsible for those acts offends basic notions of justice.
B. Inconclusiveness of Jury's Verdict
Following the close of evidence, final arguments, and the Court's instructions, the jury was given special verdict forms for those defendants charged with substantive RICO in Count II. Those verdict forms charged the appropriate defendants with the commission of specific predicate acts, from which the jury could base its verdict regarding the substantive RICO charge. But those special verdict forms failed to allege any predicate acts involving violent crimes. In addition, special verdict forms were not submitted to determine accountability for specific predicate acts for purposes of the RICO conspiracy charge.
United States Sentencing Guideline § 1B1.2(d) provides "A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit." Application Note 5 to § 1B1.2(d) states:
Particular care must be taken in applying subsection (d) because there are cases in which the jury's verdict does not establish which offenses was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense.
Here, the Court is faced with the unanswerable question of which predicate acts the jury found the defendants accountable for. In addition, evidence regarding the defendants' involvement in violent crimes offenses was abbreviated pursuant to the Court's prior orders. Thus, it is virtually impossible to attempt to determine the defendants' accountability for acts upon which there was such limited evidence introduced at trial.
Ergo, the Court sustains the defendants' objection to the inclusion of the predicate acts involving acts of murder and conspiracy tc commit murder, for purposes of sentencing, pursuant to Count I.
ENTER: 21 September, 1992.
FOR THE COURT:
United States District Judge