United States v. Colbert
| Decision Date | 03 August 2011 |
| Docket Number | Criminal No. 08-411 |
| Parties | UNITED STATES OF AMERICA v. ROBERT COLBERT (1) NICKY EVANS (3) LAMON STREET (9) JAMARR PHARR(14) DOMINIQUE STEELE (23) DEVON SHEALEY (26) |
| Court | U.S. District Court — Western District of Pennsylvania |
DIAMOND, D.J.
On February 12,2010, a grand jury returned a thirty-seven count Superseding Indictment against 27 defendants charging, inter alia, a conspiracy to conduct an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). To date, 21 of the original 27 defendants have entered guilty pleas. Jury selection and trial for defendants Colbert, Evans, Street, Pharr, Steele and Shealey is scheduled to commence on September 12, 2011.
All parties are well aware of the allegations set forth in the Superseding Indictment and they need not be stated in detail here. Briefly, Count Two of the Superseding Indictment charges 26 of the 27 original defendants, including all six remaining defendants, with RICO conspiracy in violation of 18 U.S.C. § 1962(d).1
Count Two alleges that two sets of Crips gang members, the Brighton Place Crips and the Northview Heights/Fineview Crips, were operating in concert as an "enterprise" in the Northside area of Pittsburgh.2 It further alleges that in or around 2002 or 2003, the two gangs formed an alliance in order to expand the enterprise's geographical territory and to increase the number of members associated with the enterprise so as to preserve and protect the power, territory and profits of the enterprise and to eliminate rivalries in each others' territories.
Count Two sets forth over 300 overt acts committed in furtherance of the alleged racketeering activity, including acts relating to: the possession and distribution of controlled substances; the planning and commission of robberies; attempted murder; shootings; the obstruction of official proceedings and obstruction in furtherance of the enterprise; the possession and use of firearms; the provision of monetary support to incarcerated members; and various other miscellaneous acts and discussions relating to the affairs of the enterprise.
Count Two also contains a "special sentencing factor" alleging that each member of the enterprise distributed and possessed with the intent to distribute 50 grams or more of cocaine base, in the form commonly known as crack.
All six of the remaining defendants have filed pretrial motions. In addition, those defendants were provided an opportunity to identify any motion of any co-defendant who no longer is in the case that the remaining defendant wishes to adopt. In total, 117 pretrial motions are pending. The government has filed a consolidated response to the pretrial motions filed by all defendants, and all of the pending motions are ripe for adjudication.
Colbert and Shealey have joined in a motion to dismiss Count Two of the Superseding Indictment, which was filed by Lynn Gibson (#1091). Defendants argue that Count Two should be dismissed for failure to comply with Fed.R.Crim.P. 7(c)(1) because it does not properly plead a RICO conspiracy offense under 18 U.S.C. § 1962(d). In addition, defendants contend that Count Two should be dismissed because the RICO statute is unconstitutionally vague.
The court first will address defendants' argument that Count Two should be dismissed because it does not sufficiently allege the elements of a RICO conspiracy.
In considering a defense motion to dismiss an indictment, a district court is to accept as true all factual allegations set forth in the indictment. United States v. Besmajian. 910 F.2d 1153,1154 (3d Cir. 1990). An indictment that fails to charge all essential elements of a crime must be dismissed. United States v. Cochran. 17 F.3d 56, 57 (3d Cir. 1994).
The Federal Rules of Criminal Procedure require that an indictment be a plain, concise and definite written statement of the essential facts constituting the offense charged. Fed.R.Crim.P. 7(c)(1). An indictment is sufficient if it includes the elements of the offense charged, apprises the defendant of what he must be prepared to defend against at trial, and enables him to plead an acquittal or conviction as a bar to subsequent prosecutions for the same offense. United States v. Rawlins, 606 F.3d 73, 78-79 (3d Cir. 2010); United States v. Vitillo. 490 F.3d 314, 321 (3d Cir. 2007).
In charging an offense, "no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Kemp. 500 F.3d 257,280 (3d Cir. 2007) (quoting United States v. Rankin. 870 F.2d 109,112 (3d Cir. 1989)). Accordingly, an indictment may "set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'" United States v. Cefaratti. 221 F.3d 502,507 (3d Cir. 2000) ).
In this case, defendants are charged with violating subsection (d) of 18 U.S.C. §1962, which provides that "fi]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [section 1962]." 18 U.S.C. § 1962(d). Count Two charges that defendants conspired to violate 18 U.S.C. § 1962(c) by conducting and participating, directly and indirectly, in the conduct of the affairs of the enterprise described in the Superseding Indictment through a pattern of racketeering activity consisting of multiple acts of robbery and murder, the distribution of controlled substances and obstruction of justice, all in violation of § 1962(d).
To establish that defendants are guilty of violating § 1962(d), the government must prove that:
Third Circuit Model Criminal Jury Instructions, §6.18.1962D.
Here, the court is satisfied that Count Two is sufficient to charge defendants with a RICO conspiracy. Count Two identifies 18 U.S.C. § 1962(d) as the law alleged to have been violated and sets forth all of the essential elements of the offense sufficiently to apprise defendants of the offending conduct. Specifically, Count Two tracks the statutory language and charges that defendants, who were associated with the enterprise, the activities of which affected interstate commerce, knowingly, intentionally and unlawfully conspired to violate 18 U.S.C. § 1962(c) by conducting and participating, directly and indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity that included multiple acts of robbery and murder, distribution of controlled substances and obstruction of justice. See Document No. 60,¶U.
More specifically, Count Two contains allegations describing when the enterprise was formed and how long it was in existence, the purposes of the enterprise and the various defendants' respective roles in the enterprise. See Document No. 60, ¶¶A-T. Count Two sets forth 301 overt acts committed by the various defendants in furtherance of the conspiracy. It is also alleged that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the enterprise's affairs. Id., ¶V.
Accepting all of the factual allegations as true, the court is satisfied that Count Two of the Superseding Indictment sets forth, without any uncertainty or ambiguity, all of the elements ofRICO conspiracy against the defendants sufficiently to enable them to prepare their defense and to ensure that they will not be prosecuted twice for the same offense. Accordingly, defendants' motion to dismiss Count Two for failure to comply with Fed.R.Crim.P. 7(c)(1) lacks merit.
Defendants' argument that Count Two should be dismissed because the RICO statute is unconstitutionally vague likewise lacks merit. A statute is unconstitutionally vague when it "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." United States v. Pungitore. 910 F.2d 1084,1104 (3d Cir. 1990) (citation omitted). In Pungitore. the Third Circuit held that RICO's pattern of racketeering requirement was not unconstitutionally vague as applied to the conduct of defendants who were involved in the commission of murder, extortion and illegal gambling offenses in furtherance of an organized crime enterprise. Id. at 1103-04.
Despite Pungitore, defendants contend it is unclear that any element of RICO, especially § 1962(d), could withstand a void-for-vagueness challenge in the proper case. Defendants then claim this is one such case because the RICO conspiracy statute, as used here, did not provide them fair notice that "the seemingly benign conduct with which [they are] charged was illegal, and that statute has also allowed the government to prosecute the otherwise lawful behavior of [defendants] based simply on the government's disfavor of...
To continue reading
Request your trial