State v. Brown
| Decision Date | 10 January 1985 |
| Docket Number | No. 82-492-C,82-492-C |
| Citation | 486 A.2d 595 |
| Parties | STATE v. Patrick J. BROWN et al. A. |
| Court | Rhode Island Supreme Court |
This is the state's appeal from judgments entered after two Superior Court justices in two separate actions dismissed all sixty-six counts of an indictment returned against five defendants. Four of the counts brought pursuant to the Rhode Island Racketeering Influenced and Corrupt Organizations Act (RICO), G.L. 1956 (1969 Reenactment) chapter 15 of title 7 (1984 Cum.Supp.), were dismissed by one justice on the basis that they violated the prohibition against ex post facto laws found in Article I, section 10, of the United States Constitution. The remaining sixty-two counts were dismissed under Rule 48(b) of the Superior Court Rules of Criminal Procedure by a second justice because of unnecessary delay in bringing the defendants to trial. We vacate the judgments below.
This case began its tortuous journey through the Superior Court on December 7, 1979, when the sixty-six-count indictment was returned by the grand jury against five named defendants. The indictment charged that Patrick J. Brown and Mary M. Gentile, employees of the Rhode Island State Employees' Credit Union (RISECU), and Samuel Weinberg, Farrel Jaffa, and Peter Waligowski, owners and/or salesmen at Lincoln Auto Sales, an automobile dealership, participated in a scheme that bilked RISECU out of $265,402.61. Specifically, the indictment charged some fifty-six separate larcenies, three briberies (six counts--three for offering and three for accepting), three substantive violations of the state RICO act, and one count of conspiracy to violate the RICO act. In addition, the indictment requested that defendants' interests in the enterprise, including all real and personal property, be subject to the forfeiture provisions of § 7-15-3.
The alleged scheme involved the bribing of Brown and Gentile by the other three defendants to use their influence as loan officers at RISECU to authorize car loans for uncreditworthy individuals directed specifically to Brown and Gentile by Weinberg, Jaffa, and Waligowski. After Lincoln Auto Sales received the proceeds from these loans, often for an amount greater than the value of the car purchased, the purchasers would default on their loan payments, resulting in substantial losses to RISECU. The state alleged that Weinberg, Jaffa, and Waligowski used or invested the proceeds of these larcenies in the operation of Lincoln Auto Sales.
On August 20, 1980, a Superior Court justice heard arguments made in behalf of Brown and his codefendants 1 seeking dismissal of the four RICO-related counts. Brown argued that all the acts alleged in the indictment occurred before the effective date of the RICO statute, making any prosecution of the RICO counts unconstitutional in light of the prohibition against ex post facto laws.
Decision was reserved on Brown's dismissal motion so that the motion justice could consider the memoranda presented by the prosecution and the defense. In removing the case from the trial calendar, the motion justice promised that the case would be assigned "once the pleadings are completed, once I've rendered a decision on this aspect." Two years later, on September 7, 1982, the motion justice gave a brief bench decision in which he granted Brown's motion.
The state filed a notice of appeal of the dismissal of the RICO counts in this court on September 23, 1982. Later, on December 11, 1982, the remaining sixty-two counts were called for trial. Since the entire file was in the Supreme Court, a motion to remand the case to the Superior Court became a necessity. The state filed such a motion two months later on February 10, 1983.
On March 15, 1983, Brown filed a motion to dismiss the remaining sixty-two counts under Super.R.Crim.P. 48(b) because of the state's unnecessary delay in bringing the defendants to trial. 2 After a hearing on this motion, a second Superior Court justice dismissed the remaining counts on April 27, 1983, finding that none of the delay involved should be charged to Brown. She further held that the state had failed to prove that the two-year delay occasioned by the first justice's consideration of the RICO dismissal motion was "necessary" delay since her understanding of State v. Anthony, R.I., 448 A.2d 744 (1982), required that the state be charged with delay resulting from institutional factors. The state filed a notice of appeal from this ruling on May 10, 1983, and the two appeals were consolidated for review by this court.
The first issue presented to us by this appeal is whether the first justice erred when he ruled as a matter of law that the RICO-related counts violated the constitutional prohibition against ex post facto laws and invalidated the four RICO counts.
Article I, section 10, clause 1, of the United States Constitution prohibits any state from enacting ex post facto laws. An ex post facto law punishes conduct that was innocent at the time the conduct occurred; that is, it attempts to punish a citizen "for an act, which, when done, was in violation of no existing law." Calder v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L.Ed. 648, 649 (1798). The proscription against such laws ensures that citizens receive fair warning of the potentially criminal nature of their conduct and "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981).
The first trial justice found without elaboration that the four RICO-related counts of the indictment ran afoul of the ex post facto clause. Brown had argued, and the court agreed, that all of the criminal acts alleged in the indictment occurred prior to May 5, 1979, RICO's effective date. Apparently Brown ignored one alleged act of bribery carrying the operative date of July 10, 1979, but he argues on appeal that this act is insufficient to satisfy the definition of racketeering activity found in § 7-15-1. We disagree.
The first count of the indictment alleges conspiracy to violate RICO. The remaining pertinent counts allege substantive RICO offenses. Section 7-15-2 provides in pertinent part:
Thus, the elements of a RICO offense are (1) the commission of one act of racketeering activity and (2) the use or investment of the proceeds of the racketeering activity in the establishment, conduct, or operation of an enterprise.
The duty of a Superior Court justice in ruling on a motion under Super.R.Crim.P. 12(b)(2) testing the sufficiency of an indictment is first to examine the document to determine whether it alleges the elements of the offense charged. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.1978). 3 In reviewing the indictment for this purpose, the allegations contained in the pleading must be taken as true in order to avoid a premature resolution of the merits of the charges. Id. at 1082; 4 see also United States v. Greater Syracuse Board of Realtors, 449 F.Supp. 887, 894 (N.D.N.Y.1978); United States v. Andreas, 374 F.Supp. 402, 406-07 (D.Minn.1974); 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 194 (1982).
Taking the allegations contained in the indictment as true, then, we are persuaded that all RICO counts survive Brown's ex post facto challenge. Two counts sufficiently aver the existence of an enterprise, the knowing receipt by defendants Weinberg, Jaffa, and Waligowski of funds derived from racketeering activity and the use or investment of the funds in the operation of the enterprise, Lincoln Auto Sales. The two counts also allege that the three defendants conducted and participated in the conduct of the enterprise and that this activity took place between October 1978 and December 6, 1979, thus continuing well after the effective date of the RICO statute.
Another count charges the requisite one act of racketeering activity: the alleged bribery in violation of § 11-7-3 that occurred on July 10, 1979, a month after RICO became effective. Brown argues that this act does not merit the exalted status of racketeering activity because § 7-15-1 requires that the racketeering act be a felony, and bribery under § 11-7-3 is a misdemeanor. We decline to accept this interpretation of § 7-15-1.
Brown's argument results from the statutory definition of "racketeering activity," which reads: " * * * any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, larceny or prostitution, or any dealing in narcotic or dangerous drugs which is [chargeable] as a crime under state law and punishable by imprisonment for more than one (1) year." Brown argues that the clause "which is [chargeable]...
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