Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA.
He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United
States Attorney's Office and is a member of The Champion Advisory Board.
The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for his invaluable
assistance in the preparation of this column.
War on the Defense Bar Flares Anew
Efforts by overzealous prosecutors to target the criminal defense bar continue across the land. The latest offensive comes from Houston, involving prominent criminal defense attorneys Kent Schaffer, of Houston's Bires & Schaffer, and Dan Cogdell, of Houston's Cogdell & Durham. Two traditional weapons in the prosecution's armory, the wired informer and the disqualification motion, were used against these fine defense lawyers. See Genego, William J., "The New Adversary," 54 Brooklyn L. Rev. 782 (Fall 1998); Stern, Max D. and Hoffman, David "Limitations on the Effectiveness of Criminal Defense Counsel: Legitimate Means or 'Chilling Wedges'," 136 Penn. L. Rev 1785 (June 1988). Eventually both lawyers were disqualified from representing a federal money-laundering defendant based on their contact with a key prosecution witness in the case. The facts in this sordid tale have shocked the conscience of even the conservative Houston Bar.On December 1, 1997, Schaffer and Cogdell were disqualified by federal judge Lee Rosenthal from representing Daniel Steven De La Garza in his upcoming money-laundering trial in Houston after months of preparing for trial. De La Garza was a former drug dealer and one-time government informer who had reinvented himself after building an estimated $10 million fortune in real estate and managed-care in the Houston area. He was indicted on charges of laundering $100,000 in a sting operation orchestrated by a DEA snitch Jorge Arroyo, a former client of Kent Schaffer. No love was ever lost between De La Garza and Arroyo, who had been feuding and attempting to set each other up for years. Each had originally set up the other resulting in jail time for both a decade ago. De La Garza apparently argues that he got the shorter end of that stick, serving two years in a Columbian prison as a result, he believes, of being set up by Arroyo and Arroyo's supervising DEA Special Agent, Roger Norman. However, soon after being detained in Columbia, Arroyo returned to the United States, only to be arrested and indicted on nine counts of drug smuggling, based on federal informer work done by De La Garza.
Arroyo, who was represented at the time by Kent Schaffer, was acquitted on four counts, but convicted on a remaining count. Although Arroyo was granted a new trial by the district court (later upheld in the Fifth Circuit) and the Department of Justice dropped the case, he spent a total of two years in custody before the charges were dismissed.
Cut to 1993, when veteran DEA snitch Arroyo once again contacted De La Garza asking him to launder money. What Arroyo did not know was that De La Garza himself was still in contact with the FBI as a snitch; both proceeded to work to set the other up once again -- this time in a money-laundering sting. One transaction involved $100,000 in cash, and the second transaction $275,000 in cash, allegedly transferred by cashier's check and wire transfer to De La Garza, who returned the funds, less his commission for cleaning it. De La Garza was subsequently indicted, all the while claiming that he had simply played along in order to set up Arroyo.
Though it is not clear who originally set up who, what is painfully clear is that somewhere along the line the Assistant U.S. Attorney monitoring the case against De La Garza, Robert Stabe, apparently without the slightest indicia of probable cause to believe there was wrongdoing justifying an investigation, proceeded to target De La Garza's criminal defense attorneys, Kent Schaffer and Dan Cogdell. The scheme to target Schaffer and Cogdell to see if they would "bite" came in the guise of Arroyo demanding $50,000 from Schaffer and Cogdell to back away from testifying as the key prosecution witness in De La Garza's case.
This scheme was approved by the same U.S. Attorney's Office which has been plagued by questions regarding the misconduct of its prosecutors. Two months ago, Houston U.S. Attorney Gaynelle Jones resigned amid controversy, after eight different complaints from the Justice Department Office of Professional Responsibility were filed against her office. These complaints came not only from the defense bar, but also from a number of judges. Allegedly, AUSA Stabe gave Arroyo a tape recorder in August 1997 and instructed him to record his conversations with defense attorneys Schaffer and Cogdell. Schaffer and Cogdell claimed that when Arroyo approached them, he told them that the government had backed out of a deal to pay him for his testimony against De La Garza, and if the defense lawyers would pay him, he would not testify.
AUSA Stabe has never denied giving the recorder to Arroyo to record his meeting with the attorneys. The lawyers had no interest in participating in obstruction of justice, so Schaffer and Cogdell immediately contacted Harris County District Attorney Johnny Holmes, who is known for being tough, and for as having unquestionable integrity. Holmes agreed to wire the attorneys and provided them with $50,000 to show Arroyo. When Arroyo picked up the cash, local law enforcement agents arrested him on obstruction of justice charges.
Although federal prosecutors have made the bizarre claim that Arroyo may have been set up by the defense lawyers, Arroyo has since pled guilty to a federal obstruction of justice charge. Both Schaffer and Cogdell are now convinced that, had they not reported Arroyo's illegal solicitation of the $50,000 they would have been indicted themselves. Ironically, the DEA agent who orchestrated the targeting of Schaffer and Cogdell along with Arroyo in Houston, has been promoted to supervisor of the DEA office in Sacramento. Agent Norman's promotions come in the wake of not only his most recent misconduct against Schaffer and Cogdell, but also amid allegations of his involvement in the deaths of two other informants connected with both De La Garza and Arroyo. While working as an informer for Agent Norman in the early 1980s, De La Garza claims that Norman had two informants killed in order to steal money from them. These allegations were cited in the 1996 opinion by the U.S. Fifth Circuit Court of Appeals when it overturned Arroyo's 1985 conviction on drug-smuggling charges. See, United States v. Arroyo, 805 F.2d 589, 592 (5th Cir. 1986).
Although prosecutors also now claim that the recording Arroyo made of his first meeting with Schaffer and Cogdell is corrupted and cannot be transcribed, sources from the Harris County D.A.'s Office have publicly stated that nothing on the tape suggests any wrongdoing by either defense lawyers. In what has been an even more scurrilous attempt to smear the good reputations of Schaffer and Cogdell, government agents have suggested that somehow Schaffer and Cogdell were actually the ones who set up Arroyo so that it would appear that he was soliciting money, thereby ruining his credibility in the case against De La Garza. The perversity of AUSA Stabe's participation by sending an informer to tape record in this clear attempt to frame defense lawyers and a defendant, is another troubling demonstration that no cease-fire has been declared in the War Against the Defense Bar.
In December, Schaffer and Cogdell moved to dismiss the money-laundering charges against their client, De La Garza, based on the government's clear misconduct in the use of its key informer, Jorge Arroyo, to obstruct justice. They vigorously argued that based on this "outrageous conduct by the government," the charges against De La Garza should be dismissed, particularly in light of the fact that the Assistant U.S. Attorney and Arroyo (an agent for the DEA) had effectively promoted a criminal act, by sending Arroyo to attempt to solicit a bribe. Unbelievably, not only did Judge Rosenthal, normally thought of very highly by the local defense bar, reject the motion to dismiss, she also granted the prosecution's motion to disqualify both Schaffer and Cogdell from representing De La Garza. She found that they had become witnesses in the case against De La Garza because of their contact with Arroyo. Citing their key role in the arrest of Arroyo, and despite the fact that Arroyo's contact with them was initiated by the government, Rosenthal also refused to disqualify the AUSA in the case based on the same argument employed by the prosecution that the prosecutor had become a witness to the misconduct.
While the money-laundering charges still remain against De La Garza, it is clear that the prosecution suffered a critical setback because of Arroyo's arrest after promising to leave town in exchange for the solicitation of $50,000 from Schaffer and Cogdell. During the hearing on De La Garza's motion to dismiss, DEA Agent Roger Norman actually testified that the government had targeted Schaffer and Cogdell based on the snitch's fear that the attorneys were trying to set him up when he learned that they had been trying to get a hold of him. Nevertheless, Agent Norman admitted that he was never told why or how Arroyo thought he was being set up. Yet he testified that based on Arroyo's information, he contacted AUSA Stabe, who immediately agreed to have Arroyo contact the attorneys while wired in order to see if they would commit a crime.
The egregiousness of this conduct was magnified by the fact that since Schaffer had represented Arroyo in the past, there was yet another perfectly appropriate reason why Schaffer could have been trying to talk to Arroyo. Obviously the contact of a key prosecution witness by a criminal defense lawyer attempting to interview him or find out why he contacted the lawyer should under few, if any, circumstances merit an investigation of the lawyer. Although Schaffer's limited telephone conversations with Arroyo early on were monitored and recorded, there was nothing in the exchanges that revealed anything illegal, or even questionable. Nevertheless, Schaffer was never contacted at any point by the U.S. Attorney's Office and informed about the recording or of his being targeted, until the case was blown wide open by Schaffer and Cogdell's report to local law enforcement.
There is obviously nothing illegal about meeting with a key prosecution witness in a criminal case. In fact, a defense lawyer has an ethical duty to do so, without fear that the government will be attempting to set him up.
The tortured rationale of these decisions gives the prosecution almost total control over the decision of who will eventually represent the accused. The prosecution is provided with a road map of how to disqualify any competent and aggressive defense lawyer. Apparently, Judge Rosenthal believes that the prosecution can conduct a morality-testing operation of defense counsel by wiring an informer who is attempting to set up the defense lawyer. If the lawyer is willing to commit a crime, he is arrested. If he refuse and reports it to the police, he is disqualified. Neither legal reasoning nor common sense support this result.
Narrowing Double Jeopardy Bar To Retrial after Intentional Prosecutorial Misconduct Reversal
In general, double jeopardy "does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 39 (1988). That general rule applies to a trial that ends in a mistrial either at the defendant's request, see, e.g., United States v. Dinitz, 424 U.S. 600, 607 (1976); United States v. Nelson, 718 F.2d 315, 320 (9th Cir. 1983), or with the defendant's consent, see, e.g., United States v. Kennings, 861 F.2d 381, 385-86 (3d Cir. 1988); Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996).
There is, however, an important exception to the general rule permitting retrial: the Double Jeopardy Clause does bar retrial when the government engages in prosecutorial misconduct that (1) gives rise to a successful defense motion for retrial; and (2) "was intended to provoke the defendant into moving for mistrial." Oregon v. Kennedy, 456 U.S. 667, 679 (1982); see also United States v. Oseni, 996 F.2d 186, 188 (7th Cir. 1993) (holding that double jeopardy bars retrial if the prosecution engages "in trial misconduct that is intended to and does precipitate a successful motion for mistrial by the defendant"). In such a situation, "the Constitution treats matters as if the mistrial had been declared on the prosecutor's initiative." United States v. Higgins, 75 F.3d 332, 333 (7th Cir. 1996). Kennedy, moreover, applies not only to mistrials, but to post-verdict dismissals, as well. See, e.g., United States v. Pavloyianis, 996 F.2d 1467, 1474 (2d Cir. 1993).
Kennedy motions, unfortunately, are nearly impossible to win. Satisfying the first prong of the Kennedy test is not difficult; doing so probably requires little more than an assertion by the defense attorney that the successful mistrial motion was made because of prosecutorial misconduct. Courts have been extremely reluctant, however, to find the intent to provoke the mistrial required by Kennedy's second prong. See, e.g., United States v. Millan, 17 F.3d 14, 18 (2d Cir. 1994) (prosecution's failure to disclose information about police misconduct in investigation unintentional and not intended to provoke mistrial); United States v. Jozwiak, 954 F.2d 458, 460 (7th Cir. 1992) (novice prosecutor's opening statement mentioning that several co-defendants pled guilty not attempt to provoke mistrial); United States v. McKoy, 78 F.3d 446, 449 (9th Cir. 1996) (government's failure to produce witness statements in timely manner unintentional and not intended to goad defendant into seeking mistrial); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992) (prosecutor's questions leading witness to testify that defendant made lethal threats to witness did not constitute "a calculated move aimed at forcing" defendant to request mistrial"). Indeed, the author knows of no reported case in which the defense actually prevailed on a Kennedy motion.
As noted, Kennedy bars retrial only when the prosecution's misconduct was intended to provoke, and did provoke, the defense into moving for a mistrial. There is a related situation in which the prosecution engages in misconduct to avoid an acquittal, but the defense does not find out about the prosecution's misconduct until after the defendant is convicted, and thus never moves for a mistrial during trial. If the defendant's conviction is reversed on appeal because of the prosecution's misconduct, should double jeopardy also bar retrial in such a situation? One important Second Circuit case, United States v. Wallach, 979 F.2d 912 (2d Cir. 1992) ("Wallach II"), says "yes" - sometimes.
After a four-month jury trial in 1989, e.robert wallach (sic) was convicted on four counts related to his activities involving the Wedtech Corporation: one count of conducting the affairs of Wedtech through a pattern of racketeering activity, in violation of 18 U.S.C. 1962(c); two counts of defrauding Wedtech of funds subsequently transported in interstate commerce, in violation of 18 U.S.C. 2314; and one count of conspiracy to violate the federal conflict of interest statute, 18 U.S.C. 203, and to defraud the United States, in violation of 18 U.S.C. 371. Id. at 913.
At trial, "significant testimony adverse to Wallach" was given by a senior officer of Wedtech, Anthony Guariglia. On direct, in an attempt to neutralize the "sting" of cross-examination, Guariglia testified that he had stopped gambling compulsively and had not gambled between the summer of 1988 and Wallach's trial in June 1989. Guariglia admitted on cross-examination that he had signed gambling markers totaling $65,000 at the Tropicana Casino in Atlantic City; on redirect, however, he explained that those markers did not represent gambling losses, but instead represented a $15,000 loan to pay off earlier markers and a $50,000 gift to a friend. Id. at 913-14.
After Wallach was convicted, the government learned that Guariglia had, in fact, gambled in Puerto Rico in November 1988. The government then, in a perhaps unprecedent action, indicted and convicted Guariglia of having perjured himself at Wallach's trial by providing testimony favorable to the prosecution. See United States v. Guariglia, 962 F.2d 160 (2d Cir. 1992). When Wallach learned of Guariglia's perjury, he moved for a new trial. After the district court denied the motion, the Second Circuit reversed Wallach's conviction on the ground that the government "should have known" that Guariglia's testimony that he had quit gambling was false. United States v. Wallach, 935 F.2d 445, 457 (2d Cir. 1991) ("Wallach I").
After dismissing the RICO counts, the government indicated that it intended to re-prosecute Wallach on the stolen property and conspiracy counts. Wallach then moved to dismiss those counts on double jeopardy grounds, arguing that, in light of Kennedy, "the Double Jeopardy Clause bars a second prosecution when the prosecutor engages in serious misconduct with the intention of preventing an acquittal." Wallach II, 979 F.2d at 915.
The Second Circuit had little difficulty rejecting the substantive merits of this claim. The court noted that it had concluded in his prior appeal that, at most, the prosecution "should have known" of Guariglia's perjury. The court thus held that, because Wallach was not convicted through intentional misconduct, "the factual predicate for extending Kennedy to bar retrial . . . is totally lacking." Id. at 917.
The court was somewhat sympathetic, however, to Wallach's proposed extension of Kennedy, noting that there was "force" to his argument that, given Kennedy, "the Supreme Court might think that the Double Jeopardy Clause protects a defendant from retrial in some other circumstances where prosecutorial misconduct is undertaken with the intention of denying an opportunity to win an acquittal." Id. at 916. The court insisted, however, that a rule barring retrial on double jeopardy grounds whenever the prosecution engaged in such misconduct would be unacceptably broad, because "[e]very action of a prosecutor in the course of a trial is taken 'with the intention of preventing an acquittal.'" Id. (quoting Kennedy, 456 U.S. at 674).
The panel compromised, concluding in dicta that:
[i]f any extension of Kennedy beyond the mistrial context is warranted, it would be a bar to retrial only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.
Id.
Wallach II's proposed extension of Kennedy makes sense; as the court noted, "if Kennedy is not extended to this limited degree, a prosecutor apprehending an acquittal encounters a the jeopardy bar to retrial when he engages in misconduct of sufficient visibility to precipitate a mistrial motion, but not when he fends off the anticipated acquittal by misconduct of which the defendant is unaware until after the verdict." Id.
Whether Wallach II will be of any more use to defense attorneys than Kennedy itself is, however, still an open question. There are, unfortunately, few grounds for optimism. First, although the Second Circuit reaffirmed Wallach II in United States v. Pavloyianis, 996 F.2d 1467 (2d Cir. 1993), only the First Circuit and two state supreme courts have adopted Wallach II's holding. See United States v. Gary, 74 F.3d 304, 315 (1st Cir. 1996); State v. Colton, 234 Conn. 683, 696 (1995); State v. D'Auria, 492 S.E.2d 918 (Ga. Ct. App. 1997).
Second, and perhaps most important, it may well be practically impossible for the defense to show that a prosecutor engaged in misconduct with the specific intent "to prevent an acquittal that [he] believed at the time was likely to occur in the absence of his misconduct." As indicated by Wallach II, an appellate court must at a minimum find that the prosecution's misconduct was intentional; it is not enough for the defense to show that the prosecutor "should have known" that he was engaging in misconduct. See Wallach II, 979 F.2d at 917. Even a showing of intentional misconduct, however, may not itself be enough, as indicated by a recent Seventh Circuit case, United States v. Doyle, 121 F.3d 1078 (7th Cir. 1997).
Doyle represents yet another round in the seemingly-endless litigation involving the El Rukn street gang in Chicago, litigation that has been discussed in numerous previous Rico Reports. See RICO Report, December 1993, March 1994. Doyle, whom the government alleged to be an "Officer" and a "General" in the El Rukn organization between 1980 and 1989, was convicted in 1991 of one count of RICO conspiracy, in violation of 18 U.S.C. 1962(d); one substantive RICO count, in violation of 18 U.S.C. 1962(c); and one count of engaging in a narcotics conspiracy, in violation of 21 U.S.C. 841 & 846. Those convictions were reversed a year later on the ground that the prosecution had engaged in a wide variety of intentional misconduct with regard to its Brady and Giglio obligations. United States v. Andrews, 824 F. Supp. 1273, 1291 (N.D. Ill. 1993). The district court, however, rejected Doyle's claim that retrial was barred by the Double Jeopardy Clause because of the prosecution's misconduct. Id. Doyle was then tried and convicted of all three counts for the second time.
On appeal, Doyle renewed his double jeopardy argument, urging the Seventh Circuit to follow Wallach II and to hold that he could not be retried because the prosecution's misconduct was "intentional and undertaken to prevent an acquittal [it] believed at the time was likely to occur absent the misconduct." Doyle, 121 F.3d at 1083.
The court disagreed with Doyle's argument both legally and factually. To begin with, the court noted that prior Seventh Circuit caselaw "impliedly suggests that this Circuit does not subscribe to a Wallach-type expansion of Kennedy." Id. at 1085. In the Seventh Circuit, "all that bars a retrial under Kennedy is the prosecution's intent to abort the trial;" as long as the prosecution did not intend to abort the trial, retrial is possible even if the prosecution did intentionally engage in misconduct because it believed it was reasonably likely to lose the trial otherwise. Id. at 1086.
More importantly, however, the Seventh Circuit also held that, even if the circuit did follow Wallach, Doyle's double jeopardy argument would still fail, because "[t]here is simply no record evidence that unearths the inner-thoughts of the prosecutors. Certainly, there is no record evidence that the prosecutors were intending to avoid acquittal through misconduct because they believed they were on the brink of defeat." Id. at 1087.
This conclusion is remarkable, for two reasons. Initially, it is remarkable for the impossible burden it puts on defendants: although the Andrews court in no way questioned the district court's determination that the prosecution in Doyle's case had intentionally engaged in systematic and widespread misconduct, it still held that it is not possible to infer from that misconduct that the prosecution believed that it would have lost the case had it not acted improperly. If that inference cannot be drawn when such blatant and intentional misconduct is involved, the only way for a defendant to succeed with a Wallach II motion would be to present direct evidence, such as an admission by a prosecutor, that he engaged in intentional misconduct because he believed an acquittal was likely otherwise. Needless to say, few if any defendants will ever come across such evidence.
The conclusion is also remarkable for its negative view of prosecutors. Presumably, most prosecutors believe that they can win their cases without having to engage in intentional misconduct. It thus seems reasonable to assume that, if a prosecutor does engage in systematic and intentional misconduct in a particular case, he did so because he thought that the defendant would likely be acquitted otherwise. The only alternative to that position is to assume that prosecutors routinely engage in intentional misconduct regardless of how strong they think a particular case may be. Not even the most rabid defense attorney would be comfortable with assuming that misconduct is the normal course of conduct for most prosecutors. By refusing to infer a belief in the likelihood of acquittal from a prosecutor's intentional misconduct, however, the Doyle court assumes precisely that.
Supreme Court Expands RICO Net
For many years, the circuits have been deeply divided over what a defendant charged with conspiring to violate RICO, 18 U.S.C. 1962(d), must have actually conspired to do. Three circuits, the First, Second, and Tenth, have consistently taken the position that the defendant must have agreed to personally commit two or more of the predicate acts required for a substantive RICO offense under 18 U.S.C. 1962(c). See, e.g., United States v. Sanders, 929 F.2d 1466, 1473 (10th Cir. 1991) ("[W]e adopt the rule of law that the defendant must agree to personally commit two predicate acts, not merely agree to the commission of two predicate offenses by any conspirator."); United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir. 1984) (same); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981) (same). All of the other circuits have consistently held that the defendant must only have agreed that some member of the conspiracy would commit two or more predicate acts. See, e.g., United States v. Adams, 759 F.2d 1099, 1116 (3d Cir. 1985) ("We now decide that to be convicted of a RICO conspiracy, a defendant must agree only to the commission of the predicate acts, and need not agree to commit personally those acts."); United States v. Tille, 729 F.2d 615, 619 (9th Cir. 1984) (same); United States v. Carter, 721 F.2d 1514, 1531 (11th Cir. 1984) (same).
Two years ago, this author voiced his hope that the Supreme Court would resolve the split in the circuits, noting that doing so would provide the Court with an opportunity to "discourage the typical dragnet treatment of peripheral defendants in RICO mega-trials [and] discourage the usual broad-brush charging approach of prosecutors." See Rico Report, May 1995. In making that statement, the author was echoing the sentiments of the First, Second, and Tenth Circuits; as the First Circuit had noted in Winter, "[r]equiring one to knowingly join an enterprise and agree to commit two or more predicate acts provides sufficient protection to those who might otherwise be convicted through guilt by association." Winter, 663 F.2d at 1136.
On December 7, 1997, the Supreme Court granted part of the author's wish: in United States v. Salinas, 118 S. Ct. 469 (1997), the Court explicitly asked whether "the conspiracy prohibition in the Racketeer Influenced and Corrupt Organizations Act (RICO) apply only when the conspirator agrees to commit two of the predicate acts RICO forbids." Id. at 472. Unfortunately, the Supreme Court answered that question in the negative, holding that "the interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense." Id. at 478.
Salinas analyzed a bribery scheme involving Brigido Marmolejo, the Sheriff of Hidalgo County, Texas, and Homero Beltran-Aguirre, a federal prisoner who was housed on two separate occasions in the Hidalgo County jail pursuant to an agreement between the county and the U.S. Marshals Service. During both periods of custody, Beltran paid Marmolejo a series of bribes -- $6000 per month and $1000 per visit -- in exchange for unsupervised visits with both his wife and his girlfriend. Id. at 472.
Salinas was the chief deputy responsible for managing the jail and supervising the prisoners. When Marmolejo was away from the jail, Salinas arranged Beltran's visits and, on occasion, stood watch outside the room where the visits took place. In return for his assistance, Salinas received from Beltran two watches and a pickup truck. Id.
Salinas was charged, inter alia, with one count of violating RICO and one count of conspiring to violate RICO. The jury acquitted him of the substantive RICO count but convicted him of the RICO conspiracy count. Id. at 473.
On appeal, Salinas contended that the district court erroneously allowed the jury to convict him of the RICO conspiracy count "without proof that he performed or agreed to perform personally two of the predicate acts which comprise the pattern of racketeering activity." United States v. Marmolejo, 89 F.3d 1185, 1195 (5th Cir. 1996). The Fifth Circuit affirmed, joining the other circuits that held such proof to be unnecessary. Id. at 1196. The Supreme Court then granted certiorari to resolve the split in the circuits concerning the agreement requirement of Section 1962(d).
The Court rejected Salinas' argument in less than 15 paragraphs. It began by noting that "the RICO conspiracy provision . . . is even more comprehensive than the general conspiracy offense in [18 U.S.C.] 371," because, unlike Section 371, Section 1962(d) does not contain an overt act requirement. Salinas, 118 S. Ct. at 476. That being the case, the Court held, Section 1962(d) had to be interpreted according to the general principles governing the relevant statutory phrase of the Section: "to conspire."
According to the Court, Salinas' argument ran counter to four general principles applicable to conspiracies: (1) that a conspiracy can exist even if a particular conspirator does not agree to commit or facilitate each and every part of the substantive offense, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253-54 (1940); (2) that each conspirator is liable for the acts of the other conspirators if the conspirators agree to divide up the work of the conspiracy, Pinkerton v. United States, 328 U.S. 640, 646 (1946); (3) that a conspirator can be liable for conspiracy even though he was incapable of committing the substantive offense, United States v. Rabinowich, 238 U.S. 78, 86 (1915); and (4) that where a conspiracy statute requires an overt act, the overt act requirement can be satisfied by any of the conspirators, Bannon v. United States, 156 U.S. 464, 469 (1895).
Having dismissed Salinas' legal argument, the Court then easily concluded that he was properly convicted of RICO conspiracy: "even if Salinas did not accept or agree to accept two bribes, . . . the evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about agreed to facilitate the scheme." Salinas, 118 S. Ct. at 478.
The practical effect of Salinas is to make it far easier for prosecutors to convict an individual who is indirectly (if at all) associated with a RICO conspiracy. Prior to Salinas, an individual was liable for a RICO conspiracy prosecuted in the First, Second, and Tenth Circuits only if the prosecution could prove that he agreed to personally commit a predicate offense as defined by 18 U.S.C. Sec. 1961 (1) on behalf of the conspiracy. See 18 U.S.C. 1961(a)(1). Now, however, an individual is liable for a RICO conspiracy even if the prosecution cannot prove that he agreed to personally commit any predicate offense on behalf of the conspiracy - any act or combination of acts, no matter how legal or innocuous, from which a jury could reasonably infer that the individual agreed to join the conspiracy and to "facilitate," id. at 477, others in committing two predicate offenses will suffice.
Salinas also greatly increases the possibility that an individual who either did not agree to commit a crime or did not join the RICO conspiracy will be convicted of RICO conspiracy through guilt by association. A jury is much less likely to erroneously convict an innocent individual when it has to find that the individual agreed to commit at least two predicate acts on behalf of the conspiracy then when it has to find only that the individual joined the conspiracy and intended to "facilitate" its acts of racketeering.
As noted earlier, limiting guilt by association was the specific purpose of cases such as Winter: "[r]equiring one to knowingly join an enterprise and agree to commit two or more predicate acts provides sufficient protection to those who might otherwise be convicted through guilt by association." Winter, 663 F.2d at 1136. Indeed, ironically enough, the Salinas Court itself acknowledged that guilt by association was a legitimate source of concern, noting that "[i]n some cases the connection the defendant had to the alleged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the government's case." Salinas, 118 S. Ct. at 478. The Court's acknowledgment, however, was not enough to affect the outcome of the case.
It is, of course, too early to tell how many innocent individuals will be convicted of RICO conspiracy because of Salinas. If Salinas itself is any indication, however, the number is bound to be significant. Although the Supreme Court had no difficulty concluding that "even if Salinas did not accept or agree to accept two bribes, . . . the evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme." Id. The Court did not bother to mention what evidence, apart from the one bribe of the watches and the truck, established that Salinas "knew about and agreed to facilitate the scheme." The Fifth Circuit was equally silent on that issue, stating only that "[h]aving carefully reviewed the record, we conclude that there was sufficient evidence to convict Salinas of RICO conspiracy." Marmolejo, 89 F.3d at 1197. Perhaps the Supreme Court and the Fifth Circuit were right. Perhaps not. Either way, their conclusory statements in Salinas do not bode well for defendants accused of having minor roles in future RICO conspiracy prosecutions.
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